[Federal Register Volume 65, Number 182 (Tuesday, September 19, 2000)]
[Rules and Regulations]
[Pages 56618-56667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22564]



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Part II





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 400, 401, 404, et al.



Commercial Space Transportation Reusable Launch Vehicle and Reentry 
Licensing Regulations; Final Rule

  Federal Register / Vol. 65, No. 182 / Tuesday, September 19, 2000 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 400, 401, 404, 405, 406, 413, 415, 431, 433, and 435

[Docket No. FAA-1999-5535; Amdt. Nos. 400-1, 401-1, 404-1, 405-1, 406-
1, 413-1, 415-1, 431-1, 433-1 and 435-1]
RIN 2120-AG71


Commercial Space Transportation Reusable Launch Vehicle and 
Reentry Licensing Regulations

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA amends the commercial space transportation licensing 
regulations by establishing operational requirements for launches of 
reusable launch vehicles (RLVs) and the authorized conduct of 
commercial space reentry activities. The final rules implement the 
FAA's reentry licensing authority by prescribing requirements for 
obtaining a license to launch and reenter an RLV, to reenter a reentry 
vehicle, and to operate a reentry site. Issuance of licensing rules is 
necessary to respond to advancements in the development of commercial 
RLV and reentry capability. The final rules fulfill the FAA's safety 
mandate by limiting risk to the public from RLV and reentry operations.

DATES: Effective November 20, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Stewart W. Jackson, AST-100, Space 
Systems Development Division, Office of the Associate Administrator for 
Commercial Space Transportation, Federal Aviation Administration, U.S. 
Department of Transportation, 800 Independence Avenue SW., Washington, 
DC 20591, (202) 267-7903; or Ms. Esta M. Rosenberg, Attorney-Advisor, 
Regulations Division, Office of the Chief Counsel, Federal Aviation 
Administration, U.S. Department of Transportation, (202) 366-9320.

SUPPLEMENTARY INFORMATION:

Availability of Final Rules

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this final rule. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the 
Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this final 
rule.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us [email protected].

Background

General

    The Commercial Space Act of 1998 (CSA), Public Law 105-303, extends 
the Secretary of Transportation's licensing authority under 49 U.S.C. 
Subtitle IX, chapter 701 (known as the Commercial Space Launch Act or 
CSLA) to reentry vehicle operators and operation of reentry sites by 
non-Federal entities. In addition to launch of a launch vehicle and the 
operation of a non-Federal launch site, the Secretary licenses reentry 
of a reentry vehicle and the operation of a reentry site when those 
activities are conducted within the United States or by U.S. citizens 
abroad. The Secretary's licensing authority has been delegated to the 
Administrator of the Federal Aviation Administration (FAA) and further 
assigned to the Associate Administrator for Commercial Space 
Transportation (AST). AST carries out the Secretary's regulatory 
responsibilities and safety mandate under the CSLA to ensure that 
public health and safety and the safety of property are not jeopardized 
by licensed operations. AST exercises its licensing authority 
consistent with national security and foreign policy interests, as well 
as treaty obligations, of the United States.
    Reentry vehicles, as defined by the recently amended CSLA, include 
reusable launch vehicles, or RLVs, that are designed to return from 
Earth orbit or outer space to Earth, substantially intact. Not all 
reentry vehicles are RLVs, although all of the reentry concepts 
currently identified to the FAA by prospective operators involve RLVs. 
RLV development by U.S. commercial space launch providers responds to 
increasing demand for lower cost and reliable access to space. Reduced 
cost of space access will facilitate greater commercial use of the 
space environment along with research and exploration that would 
otherwise remain unaffordable. Benefits from medical and microgravity 
research would be realized at potentially greater rates, and commercial 
services such as telecommunications and data relay would become 
increasingly available to the world market at lower cost. New markets 
in consumer services, including same day international package delivery 
as well as space tourism, could quickly develop with reliable reusable 
space vehicles.
    In the mid 1990's, prospective RLV operators identified absence of 
adequate regulatory oversight over RLV operations, particularly their 
reentry, as an impediment to technology development. The need for a 
stable and predictable regulatory environment in which reusable launch 
vehicles could operate was considered critical to the ultimate ability 
of the emerging RLV industry to obtain the capital investment necessary 
for research and development and ultimately vehicle operations. 
Limitations on the Secretary's licensing authority and ability to 
adequately regulate reentry activities was identified by the House of 
Representatives Subcommittee on Space as early as 1992, accompanied by 
continuing commitment of each successive Congress to enactment of 
authorizing legislation addressing reentry operations. The 1998 
Commercial Space Act (CSA), signed into law on October 28, 1998, 
provides a crucial first step in removing regulatory obstacles to RLV 
development. This final rule provides yet another step by establishing 
the framework and basis for licensing the next generation of reusable 
launch vehicles, as well as other types of reentry vehicles.
    Another factor critical to commercial RLV development is the 
commitment expressed by the U.S. Government in

[[Page 56619]]

the CSA to share in the risks of RLV and reentry technology and to 
extend to operators of those vehicles the financial responsibility and 
risk sharing regime that has proven crucial to commercial operators of 
expendable launch vehicles (ELVs) in achieving a dominant share of the 
U.S. launch market and increasing international competitiveness. Since 
1988, ELV launch providers and the U.S. Government have mutually 
enjoyed the substantial benefits of statutory risk allocation 
requirements. Through enactment of the CSA, a comparable regime would 
extend to RLV operators who are expected to enjoy benefits comparable 
to those currently enjoyed by ELV launch services providers. The 
Reentry Financial Responsibility final rules implement the FAA's 
regulatory program for assuring financial responsibility and risk 
allocation for licensed reentry operations, including those performed 
by RLVs, and remove yet another potential hindrance to RLV developers. 
Taken together, the comprehensive RLV and Reentry Licensing Regulations 
and Reentry Financial Responsibility final rules provide a stable, yet 
flexible, regulatory environment in which commercial RLV and reentry 
technology may reside. The FAA remains committed to designing air and 
space regulations to accommodate all of its customers, including the 
regulated space transportation industry, traveling public, persons on 
the ground, and users of air and space resources.
    In furtherance of its commitment, the FAA has been working towards 
development of an integrated concept of operations involving the 
National Airspace System, or NAS, that contemplates shared use of 
airspace by aircraft and commercial space vehicles. In addition, the 
FAA has formed an integrated product team to examine issues of common 
heritage and concern to various FAA business sectors. Working with 
industry partners, the FAA plans to further evolve its regulatory 
approach to RLVs by defining operations and maintenance plans that 
assure safe, continued use of reusable space vehicles and by 
identifying human factors that will affect crew and passenger-bearing 
RLVs. Addressing those aspects of RLV operations and space flight are 
beyond the scope of this rulemaking. A working group of the FAA's 
Commercial Space Transportation Advisory Committee (COMSTAC) dedicated 
to RLV operational issues provides advice, information and 
recommendations at the request of the FAA Administrator and AST for use 
in support of further development of the agency's regulatory and 
standards development program for RLV operations.
    Following enactment of the CSA, the FAA initiated this rulemaking 
to define and implement the licensing process, inclusive of safety 
standards, that would apply to authorized RLV missions (launch and 
reentry) and other reentry operations. For an RLV, both its launch and 
reentry require licensing under the amended CSLA and although the FAA 
has had a regulatory program in place for years governing launch 
licensing, the FAA determined that licensing regulations developed to 
address existing ELV commercial launch capability were not adequate to 
address the unique safety issues posed by launch vehicles that are 
reusable. ELVs rely upon destructive flight termination systems (FTS) 
that assure flight safety by destroying a vehicle traveling beyond 
approved limits. Timely activation of an FTS assures that vehicle 
debris will impact within a designated and unpopulated area so as to 
avoid all injury to the public. Unlike an ELV, an RLV may rely upon 
non-destructive means of ending vehicle flight, such as returning to 
the launch site or use of an alternative landing site, in the event of 
a vehicle malfunction or anomalous circumstance affecting the ability 
to conclude a mission as planned. Non-destructive means of terminating 
flight contemplate the ability to correct a problem and, if possible, 
reuse the vehicle in future flight. Although a number of factors 
influencing public safety are common to both ELV and RLV launches, the 
FAA determined it preferable to commence rulemaking dedicated to RLVs. 
Accordingly, on April 21, 1999, the FAA issued a notice of proposed 
rulemaking (NPRM) (64 FR 19626) proposing licensing requirements for 
the conduct of RLV missions as well as reentry of reentry vehicles that 
are not RLVs. In addition, on the same day, the FAA issued final launch 
licensing rules addressing, for the most part, launches of ELVs from 
Federal launch ranges (64 FR 19586, April 21, 1999).
    Notice and comment rulemaking can take months, and sometimes years, 
to complete because of the need to consider carefully public input on 
an agency proposal before issuance of final rules. To accommodate those 
RLV developers requiring regulatory guidance before rulemaking would be 
completed, the FAA engaged the space transportation industry and the 
interested public in the development of draft interim safety guidance 
for RLV operators. In the absence of final rules, interim guidance 
would serve to inform the emerging RLV industry of safety issues 
identified by the FAA that would require resolution by an applicant 
before a license would be granted. The FAA would work closely with each 
applicant in constructing an application that would ensure safety 
issues presented by an RLV mission proposal were adequately addressed. 
Interim guidance has been utilized effectively and efficiently by 
prospective launch site operators in the absence of detailed licensing 
requirements.
    As noted in the supplementary information portion of the NPRM, the 
FAA convened a meeting with industry representatives in May 1998, with 
participation by each RLV developer and prospective operator then known 
to the FAA. A spokesperson from each entity was invited to provide 
feedback to the FAA on the draft guidance and its effects on mission 
design for the purpose of refining mutual understanding of safety 
considerations presented by RLVs. As a result of this effort, the FAA 
released revised draft interim safety guidance and convened a public 
meeting in February 1999, to solicit oral and written comments from all 
interested persons on the revised guidance material. Written comments 
and a transcript of the meeting are available for public review in the 
FAA Docket Office under Docket No. 29140.
    The NPRM issued on April 21, 1999 (64 FR 19626), differs in some 
respects from the revised draft interim safety guidance. Where safety 
criteria included in the draft interim safety guidance differ 
materially from that proposed in the NPRM, the FAA utilized comments on 
the draft guidance document as one means of assessing alternative 
approaches to achieving RLV mission safety.
    In May 1999, the COMSTAC adopted a consensus-based report of the 
RLV working group addressing the draft interim safety guidance for RLV 
operators. The COMSTAC report was likewise considered by the FAA in 
developing the regulatory framework applicable to RLVs and is contained 
in the public docket under docket number 29140. It may also be obtained 
by accessing AST's web site, located at http://ast.faa.gov.

NPRM Overview: Three-Pronged Public Safety Strategy for RLV and 
Other Reentry Missions

    The public accepts a certain amount of risk when utilizing or being 
exposed to various modes of transportation. For example, the traveling 
public accepts certain risks from air travel or when driving a car. The 
public is also exposed to transportation risk resulting from

[[Page 56620]]

aircraft flying overhead or when crossing the street. Safety 
regulations are intended to assure that public risk is maintained at an 
acceptable level. For purposes of this rulemaking, the FAA is concerned 
with risk posed to the public on the ground or in airspace, as well as 
to property on the ground or on orbit, as a result of space launch and 
reentry events. Passenger and crew safety standards are beyond the 
scope of this rulemaking.
    In the NPRM, the FAA proposed a three-pronged approach, outlined 
below, to assure that public health and safety and the safety of 
property would not be jeopardized by the conduct of an RLV mission, 
defined to include ascent and descent flight of an RLV that has been 
authorized under an FAA license. Safety standards proposed by the FAA 
were intended to ensure that RLVs would not pose greater risk to public 
safety in accomplishing a flight mission than would be posed by more 
conventional ELV technology. Consistent application of the FAA's three-
pronged approach to RLVs would mean that all RLVs would be treated 
similarly in terms of allowable risk to the public, with no distinction 
between vehicles that achieve and reenter from Earth orbit or outer 
space and those intended to operate suborbitally inasmuch as they never 
enter a closed path or complete an orbit in a closed path. Accordingly, 
it has not been necessary to define or delimit outer space. Consistent 
application to RLVs of FAA safety requirements would also ensure that 
launch concepts involving multi-stage vehicles, comprised of wholly or 
partially reusable stages, would not expose the public to greater risk 
than that defined as acceptable by the FAA in other commercial space 
transportation regulations.
    The three safety-related elements reflected in the FAA's safety 
strategy for RLV mission and reentry vehicle licensing are: 
establishing limitations on the measure of acceptable public risk, use 
of a system safety process to identify hazards and mitigate risk and 
imposition of operational restrictions. These three elements are 
interrelated and together ensure that risks are sufficiently contained 
at an acceptable level. Just as system redundancy compensates for 
failure or flawed design or performance, interrelated safety elements 
assure that actual hazards from vehicle operation, whether anticipated 
in analytical assessments or unforeseen, will not increase risk to the 
public beyond an acceptable level. The following chart appeared in the 
NPRM to illustrate the interrelationship of the three elements of the 
agency's public safety strategy and is repeated in this rulemaking to 
reflect the FAA's final rule approach to RLV mission and reentry 
safety.
[GRAPHIC] [TIFF OMITTED] TR19SE00.000

1. Calculation of Ec (Acceptable Public Risk)

    The FAA proposed a collective risk measure, known as expected 
number of casualties or Ec, commonly used within the 
aerospace community. A collective risk calculation yields the 
consequences, measured in terms of human casualties, of the probability 
or frequency of occurrence of all events multiplied by the severity of 
impacts on public safety. Ec is a statistical estimation of 
risk used in the absence of empirical performance data.\1\ Because 
launches are still relatively infrequent events, this probabilistic 
assessment is used to measure acceptable risk.
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    \1\ To the extent it is available, empirical data on safety 
systems, materials and components may be used as an input in 
determining Ec.
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    Federal ranges employ an Ec standard of 0.00003 
casualties per ELV launch or Ec  30  x  
10-6. Through application of this requirement as well as 
other range safety requirements and practices, Federal ranges have 
enjoyed 40 years of ELV launch experience with no public casualty. 
Under 14 CFR 415.91, the FAA would issue a safety approval for a launch 
from a non-Federal launch site if equivalent safety is demonstrated.
    The FAA proposed to apply to RLV missions and other missions 
involving reentry of a reentry vehicle the same risk threshold as that 
used by Federal launch ranges in approving ELV launches and endorsed by 
the National Academy of Sciences Study on Federal Ranges: Ec 
 30  x  10-6. The FAA proposed to adopt a single 
Ec risk threshold applicable to all portions of licensed RLV 
flight for a particular mission. For other licensed reentries, the FAA 
proposed to assess reentry risk of a reentry vehicle in combination 
with its associated launch risk, that is, the launch that placed the 
reentry vehicle in space. As described in the NPRM, the FAA had also 
considered whether to apply Ec risk thresholds separately to 
each licensed flight phase of an RLV mission such that there would be 
an Ec allowance for launch or ascent flight

[[Page 56621]]

and another Ec allowance for reentry or descent flight. The 
FAA determined that doing so would (or could depending upon the risk 
thresholds selected) expose the public to greater risk per mission 
without sufficient justification for doing so. In the FAA's view, 
neither the commercial objective of placing a payload in space nor 
scientific and technological goals of other commercial RLV ventures 
would justify increased jeopardy to the public as a general rule. 
Accordingly, the FAA proposed to apply the ELV launch risk threshold of 
Ec  30  x  10-6 to RLVs on a per 
mission basis, and would allow an applicant for an RLV mission license 
to apportion or allocate flight risk among flight phases without 
regulatory direction from the FAA. An advisory circular, AC No. 431.35-
1, provides guidance on an acceptable means of calculating the 
Ec that would result from debris dispersion upon explosion 
or other vehicle break-up and is available from the FAA.

2. System Safety Process and Risk Analysis

    A system safety process relies upon methods and techniques for 
identifying: (i) Hazards that result from vehicle operation, (ii) 
effects on or consequences to public safety as a result of identified 
hazards, (iii) means of controlling or mitigating effects on or 
consequences to public safety, and (iv) means of verifying the 
effectiveness of risk mitigation measures. A system safety process and 
calculation of expected casualties are interrelated because the former 
is used to determine potential failure events, the probabilities of 
failures, and to estimate consequences of those failures, all of which 
affect the expected casualty rate.
    The system safety process is used to define the operating envelope 
that ensures a proposed mission will remain within the acceptable risk 
threshold and also to define operating rules and constraints for 
remaining within that envelope. The FAA maintains guidance material 
describing an acceptable system safety process; however, an applicant 
may employ another process as long as it accomplishes the intended 
purpose. Examples of acceptable failure identification techniques are 
identified in the NPRM and include: Preliminary Hazards Analysis, 
Failure Mode and Effect Analysis, and Fault Tree Analysis Methodology 
for Hazard Assessment.

3. Operational Restrictions

    Commercially operated RLVs will pose technological challenges and 
unique safety issues to the government and industry. Other than the 
partially reusable Space Transportation System (STS), of which the 
Shuttle is the best known and reusable part, there is no vehicle known 
to the FAA currently capable of entering Earth orbit and returning, 
substantially intact, to Earth. Once commercial RLVs are fully designed 
and ``metal is bent,'' operational concepts may undergo significant 
ground testing and some may undergo incremental and experimental flight 
testing in controlled airspace and possibly the upper atmosphere. 
However, absent any real world launch and reentry experience with the 
emerging generation of reusable launch vehicles, and until sufficient 
experience is gained, system data recorded and performance verified, 
the analytical processes that comprise system safety and that generate 
the calculation of Ec do not provide a sufficient basis to 
conclude that public risk is sufficiently contained and mitigated. 
Given uncertainties of performance, the FAA proposed to impose 
operating restrictions on RLV flight and other reentry missions pending 
proof of reliability and system performance, either through operational 
use or conduct of a flight test program.
    Operating restrictions are intended to limit the consequences of a 
failure where vehicle reliability cannot be ascertained with a 
sufficient level of confidence. Risk is a function of the probability 
of a failure and the magnitude of its consequences. Where the 
probability of a failure cannot be accurately determined but merely 
assumed using engineering judgment and analytical techniques, risk is 
appropriately managed by limiting consequences. Hazard analysis and 
other quantitative risk analyses are extremely important to vehicle 
design and operating concepts; however, absent real time flight 
performance data the FAA cannot rely exclusively on analytical 
constructs when public safety is at stake. Moreover, thousands of hours 
of flight data may be required to prove system reliability, 
particularly when the effects of the space environment and launch 
stress on continued use through re-flight of a reusable vehicle are not 
yet fully identified and understood. In this regard, the FAA notes that 
industry representatives have acknowledged that the STS is still 
undergoing a flight test program. Accordingly, the FAA proposed in the 
NPRM to impose operational restrictions based on probable system 
failures and to require adherence to those restrictions for all RLVs. 
Some additional restrictions would apply to vehicles that remain 
unproven, at least until such time as sufficient vehicle performance 
data is obtained to justify relief from restrictions.
    The NPRM highlighted four categories of operational restrictions 
applicable to RLV flight and reentry of a reentry vehicle other than an 
RLV, as follows: (i) Restricting flight over populated areas; (ii) 
requirements for monitoring critical systems; (iii) positive enabling 
of fail-safe reentry; and (iv) use of a sufficiently large reentry site 
as to contain the vehicle upon landing. Each of these restrictions is 
discussed in greater detail below.

Proposed Scope of RLV Mission and Reentry Licensing

    Although the FAA proposed to incorporate both launch and reentry 
authorizations in a single license that would authorize an RLV mission, 
it remains necessary to differentiate between activities that are 
licensed by the FAA and those that are not covered by FAA licensing 
authority. Delimiting the extent of licensed activity is particularly 
important because activities that are not licensed by the FAA would not 
be covered by the statutory financial responsibility and risk 
allocation regime and liability risks resulting from those activities 
must be managed privately as a matter of business judgment rather than 
Federal regulation.
    Definitions of the terms ``launch'' and ``reentry'' are proposed 
and discussed in the RLV and Reentry Licensing Regulations NPRM; 
however, as signaled in the NPRM, the notice of proposed rulemaking, 64 
FR 54448-54472, issued October 6, 1999, concerning reentry financial 
responsibility addresses in greater detail the scope of launch and 
reentry authorizations that would be contained in an RLV mission 
license because of the direct relationship between the scope of 
licensed RLV activity and applicability of risk sharing devices, 
including indemnification, under the CSLA. Accordingly, although some 
comments submitted to the NPRM docket addressed the appropriate scope 
of launch and reentry licensing, more extensive discussion and analysis 
of this issue appears in comments submitted in response to the Reentry 
Financial Responsibility NPRM. Final rules governing reentry financial 
responsibility are likewise accompanied by more extensive analysis and 
discussion by the FAA of the appropriate extent of FAA licensing 
authority over RLV missions and the interested public is referred to 
the rulemaking governing financial responsibility for licensed reentry

[[Page 56622]]

activities for a more comprehensive treatment of the issue.
    The NPRM described the need to define the extent of FAA launch 
licensing authority over launch of an RLV differently from that used to 
define launch of an ELV. Launch licenses for ELV launches authorize 
activities beginning upon arrival of a launch vehicle (or a major 
component) at a U.S. launch site and ending, for purposes of ground 
operations, once the launch vehicle leaves the ground. In terms of 
flight activity, launch ends at the point after payload separation when 
the last action of control over the launch vehicle is exercised by the 
licensee. For liquid fueled vehicle stages, the last action of control 
is typically exercised when the vehicle's upper stage is rendered inert 
or safe from explosive risk. For a solid rocket motor, that point may 
occur when upper stage fuel is exhausted or the stage is otherwise 
rendered inert.
    The FAA proposed no change with respect to commencement of licensed 
launch of an RLV from that of an ELV because pre-flight hazards expose 
the public to risk and must be regulated regardless of the one-time use 
or reusable nature of the vehicle. However, the FAA pointed out that 
defining the end of a licensed launch based upon the last act of 
control over the vehicle would not be appropriate for an RLV because 
doing so would suggest that launch continues through vehicle reentry 
and landing. This is an illogical result, in the FAA's view, in light 
of congressional direction that reentry of an RLV is subject to, and in 
fact requires, reentry licensing by the agency. Instead, the FAA 
proposed to use payload deployment as the point at which launch 
concludes for those RLVs having that as their mission. At the time the 
NPRM was issued, the FAA considered that in defining the end of launch 
in this manner it was addressing the vast majority of RLV concepts and 
launch missions under consideration. Market projections in support of 
RLV development focused on deployment and replenishment of satellite 
constellations, chiefly in low Earth orbit. Although this distinction 
was discussed in the Supplementary Information portion of the NPRM, the 
proposed definition of the term ``launch'' that appears in the 
regulatory text failed, due to an oversight, to include this regulatory 
distinction between ELV and RLV launches.
    Reentry licensing, as proposed in the NPRM, would commence upon 
initiation of operations necessary to assure reentry readiness and 
safety, that are uniquely associated with reentry and that are critical 
to ensuring public health and safety and the safety of property during 
reentry. The NPRM addressed the absence of licensing authority over on 
orbit operation of an RLV but noted that most of the RLV concepts 
briefed by developers to the FAA would deploy a payload and spend 
minimal time on orbit in order to minimize risk to the vehicle and to 
take advantage of rapid turnaround for the next mission. Therefore, for 
most RLVs under development or contemplation, there would be minimal, 
or no, on-orbit activity not subject to FAA licensing.
    Under the proposed mission approach to RLV licensing, only vehicle 
flight would be evaluated against the mission risk criterion of 
Ec  30  x  10-\6\. Licensed ground 
operations preceding ascent flight and following reentry landing would 
not be factored into the Ec analysis. Unlicensed on-orbit 
operations also would not enter into the equation.
    The FAA proposed an application process and structure similar to 
that traditionally applied to requests for ELV launch licenses, and the 
section-by-section analysis of the proposed regulatory text explains 
the purpose and content of each of the reviews performed by the FAA 
before a license may be issued. Policy and safety reviews and approvals 
are necessary elements of RLV mission licensing, as well as the 
satisfactory completion of any required payload review. A payload 
review may be required for launch and also for reentry of a payload. An 
environmental review of the impacts associated with proposed operation 
of an RLV, including activities to be performed at a planned reentry 
site, is also an element of RLV mission licensing and requirements for 
conducting the review are described in the NPRM. Where the reentry 
vehicle is not an RLV, the same kinds of reviews would be required to 
support a reentry licensing determination; however, the information 
required of the applicant would be limited to that pertaining to the 
reentry or descent flight. Rather than reiterating all of the 
application requirements applicable to reentry flight, the NPRM 
proposed a new part limited to reentry of a reentry vehicle that is not 
an RLV. That part refers an applicant for reentry licensing to reentry-
related elements of RLV mission licensing requirements and contains 
additional regulatory requirements that are unique to reentry vehicles 
other than RLVs.

Public Response to Three-Pronged Public Safety Strategy for RLV and 
Reentry Safety

    Twenty entities submitted comments to the docket during the 90-day 
comment period provided by the FAA. Comments were submitted chiefly by 
developers of RLVs and entities involved in technology development 
intended for use in reentry concepts. In general, the comments 
commended the FAA for swift issuance of a clear, yet flexible, 
regulatory framework in response to a statutory mandate and the growing 
need for a predictable licensing regime for RLVs.
    A number of observations or general themes can be discerned from 
the comments. Among them is the sense of some RLV developers that the 
FAA adheres too closely to ELV-based regulations in its proposed 
approach to mission safety and that aircraft regulation, including the 
FAA's certification authority, provides a better model for RLVs. This 
view was espoused by developers of passenger-bearing concepts, in 
particular. Some suggest commencing FAA licensing of flight test 
operations under an experimental certification, use of a transport 
category certification having design criteria and flight test standards 
for passenger and cargo bearing vehicles, and the equivalent of 
flightworthiness certification once design reliability has been 
established. Several comments pointed out the need to begin addressing, 
through regulations, safety criteria for RLVs that will transport 
passengers in addition to a payload or cargo and the need for 
operations and maintenance (O&M) standards that will facilitate re-
flight approval. The FAA has already begun examining human factors in 
space, as previously noted, and is engaged with the RLV working group 
of the COMSTAC on O&M considerations that may facilitate future 
rulemaking on these important matters.
    Where an RLV incorporates aircraft technology, some comments 
recommend use of existing Federal Aviation Regulations codified at 14 
CFR parts 1-198, either exclusively during subsonic or low supersonic 
flight, or in combination with FAA licensing under the CSLA. Although 
the FAA does not intend to impose certification requirements on RLVs 
for a number of reasons, the agency agrees that aircraft certification 
may play a role in approving certain vehicle systems for launch. For 
example, although it is an ELV, the Pegasus launch system which is 
subject to 14 CFR 1-198 certification requirements contained in the 
Federal Aviation Regulations referenced above governing operation of 
the L-1011 aircraft, and FAA licensing of flight operations commencing 
upon take-off of the L-1011, in accordance with the Commercial Space 
Transportation

[[Page 56623]]

Regulations, 14 CFR Ch. III, illustrates how the two regulatory 
programs may be combined to assure public safety.
    Certification suggests design approval based on compliance with 
standards developed after years of flight history and experience. Given 
that RLVs are still in conceptual and developmental stages, the FAA 
considers it premature to impose standards other than those necessary 
to protect the safety of persons and property on the ground, in 
airspace or on orbit. With additional knowledge of RLV technology, the 
FAA may utilize newly granted authority to issue safety approvals for 
vehicles or safety systems in order to gain the economic benefits and 
efficiencies of standardizing approvals. A safety approval would 
signify that a vehicle, when operated within a defined envelope, may be 
operated in a manner that does not expose the public to unreasonable 
risk. However, unique characteristics of a mission, such as the 
proposed launch site, reentry site and trajectories for each flight 
phase, would have to be examined for impacts on public safety resulting 
from vehicle flight. The FAA anticipates that several years of 
experience in licensing RLV missions would be required before it is 
prepared to issue proposed safety approval standards.
    Kistler Aerospace Corporation (Kistler) commented that licensing 
requirements proposed in the NPRM may be used as a regulatory framework 
from which the FAA and the applicant would, in essence, negotiate a 
licensing plan consisting of requirements tailored to the applicant's 
proposed operations. Documentation, analyses, methodologies and tests, 
along with a schedule, would be agreed upon by the applicant and the 
agency, leaving the applicant free to propose an assessment methodology 
and criteria. This licensing arrangement was identified in the COMSTAC 
Report on RLVs. Although the FAA does not embrace the notion of binding 
license negotiation, per se, the agency intends to engage in pre-
application consultation with license applicants to accomplish a number 
of the objectives outlined in Kistler's proposal. For example, elements 
of a license application would be identified during pre-application 
consultation to address the unique aspects of a proposed RLV or reentry 
mission.
    The FAA agrees in principle with Space Access's comments suggesting 
use of an incremental licensing approval plan whereby the FAA would 
approve or provide formal feedback to an applicant on its submissions. 
Pre-application consultation is designed to accomplish the objectives 
outlined in Space Access's comments. It also provides an applicant 
early indication as to whether a proposed mission is eligible for 
licensing or poses unreasonable risk that may never be sufficiently 
mitigated as to warrant safety approval. As detailed more extensively 
in the section-by-section analysis, a number of different approvals 
comprise a licensing determination by the FAA, and these may be 
requested by an applicant in any order. In this manner, an applicant 
may obtain early indication from the FAA as to whether obstacles to a 
favorable licensing determination exist because of national security or 
foreign policy interests of the U.S. Government, safety concerns, or 
environmental considerations.
    In addition, the licensing approach outlined in the NPRM and 
codified in this final rule would allow an applicant to utilize a 
methodology of the applicant's choosing as long as it satisfies the 
performance goals stated in the rule. For example, an acceptable system 
safety process is one that identifies and assesses the probability and 
consequences of reasonably foreseeable hazardous events and safety-
critical system failures during a mission. The FAA has issued an 
advisory circular illustrating an acceptable system safety process in 
addition to an advisory circular on expected casualty calculation. 
Advisory circulars are available from the FAA and, where applicable to 
activities licensed under the CSLA, may be obtained by accessing the 
AST web site at http://ast.faa.gov. An applicant could follow the 
advisory circular guidance or propose another equivalent methodology. 
One comment applauded the use of advisory circulars in RLV mission 
licensing and the flexibility it affords an applicant. Another 
suggested that the FAA continue to refine them.
    Taken together, these elements of the FAA's licensing program 
afford an applicant great flexibility in seeking a license and optimize 
opportunities for fashioning an acceptable application.
    One comment not incorporated by the FAA in this final rule would 
require the FAA to license an RLV mission unless the FAA could document 
reasons to believe the reentry would be unsafe. Shifting the burden in 
this manner would reduce costs and paperwork burdens for an applicant, 
as the comment points out. Nevertheless, the FAA maintains that the 
burden of demonstrating safe operating capability remains on the 
applicant and makes no change in its licensing procedure on the basis 
of the comment.
    The aircraft analogy previously discussed regarding the L-1011 
aircraft used as part of the Pegasus launch system informs comments 
objecting to FAA's proposed flight phase approach to licensing an RLV 
mission whereby the FAA would assess ascent and descent flight risk 
without regulation of on-orbit activity. Vela Technology Development, 
Inc. (Vela) plans a passenger-bearing vehicle and objected to the FAA's 
proposed licensing approach. Vela stated that licensing launch and 
reentry is akin to licensing take-off and landing of an aircraft 
without regard to en route flight operations. According to Vela, this 
philosophy is an inappropriate hold-over from ELV-based regulations and 
that only entry into and operations within controlled airspace require 
FAA licensing.
    Unlike the statutory authority over aircraft granted to the FAA, 
the CSLA limits FAA licensing jurisdiction to the launch of a launch 
vehicle and reentry of a reentry vehicle. For this reason, the FAA is 
unable to abandon the flight phase approach to calculating and 
regulating mission risk. The FAA's flight phase approach to assessing 
mission risk is explained in greater detail below. Also summarized in 
this supplementary information under the heading, ``Scope of RLV 
Mission and Reentry Licensing Under the Final Rule,'' is the legal 
basis upon which the FAA has determined that it does not license all 
RLV operations, wherever conducted.
    Vela further commented that only an unpredictable or uncontrolled 
reentry poses a risk to public safety requiring safety regulation and 
yet Vela understands that ELV ``reentry'' is not subject to FAA 
licensing. The FAA agrees with Vela's comments that suggest an 
uncontrolled reentry poses certain risk to public safety; however, 
unless an object has been designed to survive reentry in substantially 
intact condition, risks to public safety should be non-significant if 
not negligible and its reentry need not be regulated.\2\ For this 
reason, the FAA's licensing jurisdiction is limited to reentry of a 
reentry vehicle. ``Reentry,'' as defined by the CSLA, means to return 
or attempt to return, purposefully, a reentry vehicle and its payload, 
if any, from Earth orbit

[[Page 56624]]

or from outer space to Earth. 49 U.S.C. 70102(12). A ``reentry 
vehicle'' means a vehicle designed to return from Earth orbit or outer 
space to Earth, or an RLV likewise designed to return, substantially 
intact. 49 U.S.C. 70102(13). In other words, when survivability by 
design is combined with the purposeful act of reentry, risks to public 
safety rise to a sufficient level as to warrant regulatory oversight. 
Most debris is expected to burn up due to heating caused by movement 
through the atmosphere during descent; however, on occasion, pieces of 
debris such as the Delta II second stage may survive in deteriorated 
condition and land on Earth. Although the return to Earth of vehicle 
debris is not a licensable event under the CSLA, the FAA does consider 
vehicle staging impacts as part of the mission review for a launch 
license and their associated risks in assessing financial 
responsibility requirements when licensing a launch involving vehicle 
stages that may impact populated areas during a nominal launch or in 
the event of catastrophic failure and vehicle break-up.
---------------------------------------------------------------------------

    \2\ As noted in the NPRM, risk to public safety from a reentry 
that is essentially random or otherwise non-nominal would be 
assessed as part of the licensing process and an applicant would 
have to demonstrte that reentry will not exceed aceptable risk 
criteria for the mission. Assessing the risk of non-nominal reentry 
using mission risk criteria avoids the need for a regulatory 
requirement that an operator incapacitate its vehicle in the event 
of an abort to orbit situation. (See 46 FR 19639).
---------------------------------------------------------------------------

    The Experimental Rocket Propulsion Society (ERPS) commented that 
licensing should be based on vehicle design, not operator intent, so 
that a vehicle designed to reenter substantially intact would require 
reentry licensing by the FAA whether or not its operator intended it to 
reenter. Doing so would avoid potential abuse by vehicle operators, 
according to ERPS. Presumably, this abuse would be failure to obtain a 
reentry license claiming lack of intent to reenter. For reasons related 
to concerns cited by ERPS, the FAA noted in the notice of proposed 
rulemaking governing financial responsibility requirements for licensed 
reentry activities that the term ``purposefully'' in the statutory 
definition of ``reentry'' would not necessarily exclude a premature 
reentry or suborbital activities from reentry licensing coverage merely 
because reentry occurs through physical forces or ballistically. 
Designed-in capability and intent to reenter would subject an operator 
to reentry licensing as long as other statutory thresholds triggering 
FAA licensing authority are met. (See ``Financial Responsibility 
Requirements for Licensed Reentry Activities;'' October 6, 1999, 64 FR 
54448-54472, at p. 54454, n.8.)

1. Comments on Mission Risk and Ec Calculation

    The NPRM proposed a single, per mission risk criterion of Ec 
 30  x  10-\6\ for an RLV mission. The combined 
risk of RLV flight covered by a license for a single mission, both 
ascent and descent, would have to satisfy this criterion in order for 
the FAA to issue a favorable safety approval, a necessary ingredient 
for an RLV mission license. A general explanation of how casualty 
expectation is formulated is provided in the NPRM at 64 FR 19634, and 
an FAA Advisory Circular, AC No. 431.35-1, offers guidance on an 
acceptable methodology for calculating the expected number of 
casualties. Although the methodology addresses debris dispersion and 
its contribution to expected casualty estimation, the NPRM notes that 
the casualty area of a vehicle used in calculating Ec must 
also account for casualties related to secondary explosions, hazardous 
material exposure such as toxic substances, and lateral debris movement 
following impact.
    Under the final rule, acceptable per mission risk for an RLV launch 
and reentry may not exceed 30 in a million missions or .00003 
casualties per mission. The FAA adopts the Federal range standard 
applied to ELV launches on a per launch basis to ensure risk to the 
public is maintained at an acceptable level and not increased by virtue 
of a vehicle's return flight capability. Although licensed activity 
includes pre-flight ground operations and reentry-readiness operations 
conducted in space before vehicle descent, only ascent and descent 
flight during which an instantaneous impact point, or instantaneous 
impact point (IIP) debris footprint, exists on Earth is considered in 
calculating expected casualty.\3\ Pre-flight hazards and operations 
conducted on orbit, whether or not subject to FAA licensing, would not 
contribute to the expected casualty calculation.
---------------------------------------------------------------------------

    \3\ Existence of an IIP creates risk to public safety inasmuch 
as it reflects the projected impact point on the surface of the 
Earth where the vehicle or vehicle debris would land in the event 
the vehicle fails or breaks up. Generally, the IIP is located ahead 
of the vehicle because momentum and atmospheric forces cause the 
vehicle to impact in a downrange location rather than directly 
underneath the vehicle at the moment of failure or break-up.
---------------------------------------------------------------------------

    Several comments endorsed use of expected casualty in assessing 
mission risk and the FAA's determination not to allocate, or define, 
the total risk ``budget,'' applicable to each flight phase. United 
Space Alliance (USA) disagreed with imposition of a single risk 
criterion on all RLV mission flights particularly when launch and 
reentry events are separated by an extended length of time. TGV 
Rockets, Inc. (TGV) argued that use of the single Ec 
criterion of .00003 for an RLV mission is too stringent and urged 
application of an Ec limit of .00003 for launch and another 
Ec limit of .00003 for reentry.
    Kistler opposed use of a casualty expectation criterion stating 
that it is unjustifiable, too subjective, and would stifle innovation. 
Instead, Kistler urged the FAA to utilize a more system-oriented 
approach to RLV licensing focused more upon hardware and engineering. 
That said, Kistler suggested that a combined risk assessment criterion 
may be justified for a suborbital RLV because, once created, the 
instantaneous impact point (IIP) of the vehicle exists continuously, 
whereas for reentry from orbit, an IIP exists during launch, ceases 
upon achieving orbit, and is recreated during reentry flight. In 
support of its position, Kistler notes that attaining orbit suggests 
that launch resulted in zero risk exposure to the public. Hence, 
combining launch and reentry risk is a mathematical abstract with no 
bearing on public safety, according to Kistler. Lang Engineering, 
Regulatory and Program Support (Lang) stated that casualty expectation 
should be used as a guiding principle for now but that the FAA should 
explore use of accepted practices and empirical data that can be used 
to support a safety demonstration as the regulatory program for RLVs 
evolves.
    The FAA disagrees with Kistler and has determined to retain use of 
casualty expectation, determined in advance of the conduct of a 
mission, as a means of limiting RLV mission risk to public safety to an 
acceptable level. The level of acceptable risk, defined as not 
exceeding 30 casualties in a million missions or .00003 casualties per 
mission, has been successful in preserving public safety as evidenced 
by Federal range history. The final rules do not allocate a risk quota 
for RLV flight phases but allows an applicant maximum flexibility to 
design an RLV and operational plan that satisfies the single risk 
criterion for mission flight. Limiting mission risk, in combination 
with other elements of the FAA's safety strategy, will foster 
confidence in RLV operations among the general public as well as ensure 
that licensing determinations are made in a manner that is consistent 
with the paramount public safety concerns of the agency.

2. Comments on System Safety Process and Risk Analysis

    In the NPRM, the FAA invited public comment on proposed use of a 
system safety process and risk analysis as part of the FAA's overall 
public safety strategy for RLV and reentry vehicle licensing. No 
opposition to use of a system safety process appears in the

[[Page 56625]]

comments and some affirmatively endorse its benefits. A number of 
comments expressed appreciation for the flexible approach to system 
safety outlined in the NPRM and use of an advisory circular to provide 
guidance on an acceptable methodology. Consistent with remarks made by 
Kistler at the February 11, 1999 public meeting, the FAA would not 
require all of the studies listed in the draft interim safety guidance 
as examples of system safety analyses but would allow industry 
flexibility to select a system safety process appropriate for its 
vehicle and concept of operations.
    Kelly Space & Technology, Inc. (Kelly) commented that the 
documentation used for vehicle development should be used to support 
the system safety process to the maximum extent possible to reduce 
costs and burdens on the applicant. The FAA agrees and notes that use 
of a system safety process much like that embodied in 14 CFR 25.1309 
for aircraft should not impose an additional regulatory burden on an 
applicant because it is substantially similar to the engineering 
analysis a vehicle developer would utilize in assessing vehicle 
performance for its own developmental purposes.
    Kistler and Applied Science & Technology, Inc. (ASTi) objected to a 
statement in the NPRM Supplementary Information to the effect that a 
conservative risk assessment is appropriate for a vehicle lacking an 
adequate flight history and therefore risk analysis must assume one 
hundred percent probability of failure. Kistler commented that the FAA 
should define adequacy of flight history based upon experience gained 
within the system's design envelope, as opposed to statistical analysis 
of launch history, such that a system that demonstrates integrity in 
some acceptable portion of its design envelope would qualify as having 
an adequate flight history.
    The FAA responds to Kistler's and ASTi's comments in two parts. 
First, the FAA does not mandate, without provision for relief from the 
requirement, that risk analysis assume a one hundred percent 
probability of a catastrophic failure. Under an alternative noted in 
the NPRM, an applicant could prepare a detailed risk analysis using 
traditional system safety methodologies as described in the system 
safety process advisory circular. Acceptable risk assessment techniques 
for determining failure conditions include Preliminary Hazards 
Analysis, Failure Mode and Effect Analysis, Event Tree Analysis, and 
Fault Tree Analysis Methodology for Hazard Assessment. Methodologies 
such as those listed here include failure modes and probability rates 
affecting risk to public safety and safety of property without 
necessarily assuming a one hundred percent failure rate. Under this 
regulation, an applicant may select any system safety analysis 
methodology that assesses the probability and consequences of 
reasonably foreseeable hazardous events and safety-critical system 
failures that could cause a casualty to the public. It is therefore not 
a requirement that an applicant's risk analysis assume the probability 
of a catastrophic failure of 1.0 for purposes of the hazard 
identification and risk assessment required under the final rule, 
Sec. 431.35(c). Rather, probabilistic tools may be utilized by an 
applicant as long as they address nominal and non-nominal vehicle 
operation during flight. Second, with regard to adequacy of flight 
history, the FAA is not prepared to define in this regulation the 
criteria by which a vehicle may be deemed ``proven'' as opposed to 
``unproven.'' \4\ However, the FAA will accept a record of past 
performance of a safety system under comparable operating circumstances 
as an indication of reliability and will accept the use of historical 
reliability data in an applicant's risk assessment.
---------------------------------------------------------------------------

    \4\ A distinction between ``unproven'' RLVs and all others 
appears in regulatory text governing operational restrictions.
---------------------------------------------------------------------------

3. Comments on Operational Restrictions for RLV and Other Reentry 
Missions

    Operational restrictions, particularly those imposed on vehicles 
without a proven flight safety record, proved to be the most 
controversial aspect of this rulemaking. ACTA, Inc. (ACTA) commented 
that the FAA should expect opposition to proposed requirements from the 
RLV industry because they are inconsistent with RLV operational 
concepts. The Rotary Rocket Company (Rotary Rocket) stated that the 
proposed operational restrictions have no factual or analytical basis 
and are therefore arbitrary. According to Rotary Rocket, vehicle 
reliability and satisfaction of the expected casualty criterion for a 
mission are sufficient to limit public risk. Rotary Rocket further 
stated that the proposed operational restrictions will distort 
operating concepts and are detrimental to the RLV industry.
    Comments on each of the four categories of operational restrictions 
are summarized and addressed below.
A. Restricting Flight Over Populated Areas.
    Proposed restrictions, but not a ban, on population overflight 
would apply to all RLV missions and reentries; however, additional 
restrictions were proposed for unproven vehicles. In the NPRM, the FAA 
proposed that for any RLV mission or reentry, the projected IIP of the 
vehicle shall not have substantial dwell time over densely populated 
areas during flight. Seven comments objected to the restriction on any 
RLV or reentry that the IIP of the vehicle must not have substantial 
dwell time over a densely populated area. Some comments expressed 
concern that, unless defined more specifically, the terms 
``substantial'' and ``densely'' remain vague and ambiguous and will 
complicate mission planning for operators. Others objected on the basis 
that this additional requirement is overly restrictive and that 
remaining within the permissible limits of the expected casualty 
threshold should be the sole criterion by which the FAA would allow or 
disallow population overflight because the criterion takes into 
consideration population density, casualty area and probability of 
failure. One comment noted that the proposed regulation would place 
more value on the lives of persons living in densely populated areas 
since overflight of such areas is limited, whereas overflight of merely 
populated areas is not so limited. Another comment stated that the FAA 
should dispense with the restriction arguing that an adequate flight 
history is sufficient to allow such overflight as long as the vehicle 
will remain within its demonstrated flight envelope.
    For the following reason, in this final rule as in the NPRM, the 
FAA declines to define the terms in issue using quantitative measures 
opting instead to apply a qualitative measure on a case-by-case basis. 
In response to the comments regarding the projected IIP associated with 
substantial dwell time over densely populated areas, the FAA believes 
that substantial dwell time applies in a cumulative manner, such that 
multiple instances of dense population overflight of the IIP during a 
mission could amount to substantial dwell time. Substantial dwell time 
is a relative term when applied as a qualitative measure because the 
consequences of failure early in flight when the IIP passes slowly over 
a densely populated area are far greater than the consequences would be 
later in flight just before the vehicle attains orbital velocity. It is 
the consequences of failure that prompts the FAA to

[[Page 56626]]

forbid substantial dwell time of the IIP over a densely populated 
area.\5\ When failure consequences may be too great to be tolerated 
then population overflight would be barred. The approach utilized by 
the FAA in the NPRM and retained in the final rule regarding population 
overflight by any vehicle resembles that applied to ELV launches from 
Federal ranges. The IIP of ELVs launched from Cape Canaveral Air Force 
Station may, for example, fly over portions of Africa for a few 
seconds. Some population overflight is tolerated in such circumstances 
because it contributes little to the expected casualty calculation. It 
is perhaps with that in mind that some comments advocated that the 
Ec criterion alone should be sufficient to safeguard public 
safety interests. However, unlike ELVs, RLV trajectories may cover 
inland areas where population centers may be affected early in flight. 
For this reason, the FAA considers it necessary to make explicit in the 
regulations a restriction against dense population overflight when the 
consequences of failure, regardless of how remote the risk of its 
occurrence, would be intolerably severe.
---------------------------------------------------------------------------

    \5\ Similarly, Sec. 91.319(c) of the Federal Aviation 
Regulations provides that unless otherwise authorized by the 
Administrator in special operating limitations, no person may 
operate an aircraft under an experimental certificate over a densely 
populated area or in a congested airway. Generally speaking a 
minimum of 1,000 hours of flight testing would be performed before 
the FAA would issue a type certification for new aircraft and remove 
flight restrictions.
---------------------------------------------------------------------------

    The FAA further notes that, unlike aircraft, there is no 
operational experience with commercial RLVs or reentry vehicles on 
which to assess actual risk from population overflight of a vehicle's 
IIP. With experience in RLV regulation and operation, the FAA 
anticipates that it may re-examine the need for an absolute restriction 
of this nature.
    Restrictions proposed in the NPRM in Sec. Sec. 431.43(d)(1) and (2) 
on the planned flight trajectory of an unproven vehicle proved even 
more controversial than those affecting all RLV and reentry vehicle 
flight. Under the first alternative, flight operations would be limited 
such that IIP of the vehicle does not have substantial dwell time over 
a populated area. Under the second alternative, some population 
overflight would be tolerated as long as the expected average number of 
casualties to the public would not exceed 30  x  10--6 
assuming a vehicle failure at any time the IIP is over a populated 
area.
    The two alternatives are not mutually exclusive. The FAA clarifies 
in this final rule that in planning a mission an applicant may plan a 
trajectory that satisfies one restriction during some portion of flight 
and the other restriction during other portions of flight. Applied in 
combination, operational restrictions for unproven vehicles will not 
preclude vehicles from utilizing inland launch and reentry sites as 
long as the vehicle flight trajectory is carefully planned and 
controlled to comply with rule requirements.
    One commenter asked for clarification as to whether the term 
``IIP'' used in this context refers to an intact vehicle or the debris 
pattern that would result from vehicle breakup. The FAA intends the 
term ``IIP'' to refer to the debris footprint of the vehicle, or 
casualty area, inclusive of the debris dispersion pattern that would 
result, depending on the catastrophic failure mode.
    In addition to comments seeking more precise definition of the term 
``substantial'' dwell time or proposing quantitative measures, some 
comments noted that a restriction of this nature unfairly burdens RLVs 
in favor of ELV technology because unproven ELVs are not held to 
comparable restrictions. The FAA disagrees. Restrictions on unproven 
RLVs were developed to ensure that operators of unproven RLVs are 
granted similar latitude to that afforded ELV operators. ELVs typically 
are not operated such that there exists substantial dwell time of a 
vehicle's IIP over any populated area.
    As with proven vehicles, the term ``substantial'' is applied on a 
case-by-case basis using a qualitative approach to risk assessment. 
Expected casualty is a function of the probability of a failure event 
and its consequences. If both the probability of failure and the 
consequences of vehicle failure are high, then it is reasonable to 
envision a high expected casualty rate. By reducing either the 
probability of failure or the consequences of failure, the resulting 
expected casualty determination is lowered. Because unproven vehicles 
have an unknown or uncertain failure rate, the FAA considers it 
reasonable to ensure that risk is most effectively mitigated by 
controlling the consequences of a failure. The FAA does so by limiting 
opportunities for high consequence events and therefore retains 
flexibility to determine on a case-by-case basis whether dwell time 
over a populated area is too significant to allow because the 
consequences of a failure would be unacceptably high.
    Alternatively, an applicant may assume a vehicle failure while the 
IIP is over a populated area and obtain approval for flight as long as 
the Ec threshold of 30  x  10-6 is not exceeded. Rotary 
Rocket commented that it would be impossible to design a flight 
trajectory that would satisfy this criterion. In addition, Rotary 
Rocket protested in its comment that a regulatory authority could 
conjure up failure scenarios that, in combination, would make it 
impossible to fly over any populated area. Lockheed Martin Corporation 
(Lockheed Martin) suggested replacing the absolute probability of 
failure with a 1/250 probability of failure for RLVs that are 
substantially aircraft-like.
    In contrast, ERPS suggests that the proposed criterion be used 
during all phases of flight because the allowable population density 
under the IIP is inversely proportional to the casualty area of the 
vehicle and the result would be that no RLV would be allowed to fly 
over a large population center.
    The FAA disagrees with comments suggesting that unproven ELVs are 
unfairly subject to more lenient regulations than tolerated under this 
rule. As described above, the IIP of ELVs, proven and unproven, are 
allowed over some populated areas late in flight when the probability 
of failure and its consequences are relatively low.
    The FAA also disagrees with those comments opposed to proposed 
operational restrictions on unproven vehicles that argue that the 
restrictions could only be satisfied by the smallest of vehicles 
launching from coastal sites and reentering to coastal areas. With the 
restrictions on population overflight by the IIP of an unproven 
vehicle, an applicant would be able to plan a flight path that allows 
for overflight of a sparsely populated area early in flight when 
vehicle failure would not exceed the allowable expected casualty 
criterion of 30  x  10 -\6\ and overflight of a populated 
area for a brief period later in flight when the contribution to 
Ec of failure consequences during that stage of flight are 
sufficiently small such that the mission Ec does not exceed 
the mission risk criterion of Ec  30  x  
10-\6\. Also, as pointed out by Space Access, upon firing of 
retrorockets to deorbit an RLV, the vehicle's IIP is expected to pass 
rapidly over about half the circumference of the Earth, perhaps passing 
over populated areas for mere seconds. Population overflight under such 
circumstances is not likely to contribute significantly to the 
Ec calculation and is not necessarily prohibited under the 
final rule.
    Unproven vehicles may fail for any number of reasons and aircraft 
history suggests that some failure-causing events may be unforeseen or 
unpredicted during risk analysis. Therefore, the FAA determines it 
prudent to apply conservative

[[Page 56627]]

operational limits on unproven vehicles in order to limit risk to 
public safety.
    For these reasons, the FAA retains the operational restrictions 
pertaining to population overflight of the IIP of an unproven vehicle 
in the final rule with the clarification offered above regarding the 
combined applicability of the two restrictions. An applicant need not 
limit itself to one or the other operational restriction for the 
duration of an RLV or reentry mission. An applicant may plan a flight 
trajectory for the mission that utilizes both restrictions as long as 
allowable mission risk (Ec  30  x  10-\6\) is not 
exceeded.
B. Monitoring Critical Systems.
    Under the proposed rules, an operator would be required to monitor 
and verify the status of launch and reentry safety-critical systems 
both before and during launch flight as well as before initiating 
reentry flight, and must maintain procedures for doing so. Because the 
FAA also proposed that reentry flight from orbit could not be initiated 
without issuance of a command enabling the vehicle's descent to Earth, 
the ability to monitor safety-critical systems before initiating 
reentry flight is a necessary component of the FAA's public safety 
strategy. Monitoring capability would ensure that both launch and 
reentry flight would be initiated only under nominal conditions or 
under non-nominal conditions assessed in accordance with the licensee's 
system safety process and demonstrated to be within acceptable risk 
criteria. The proposed rules would not require real-time monitoring of 
data used for other purposes, such as system validation, system reuse 
or post-flight anomaly investigation. Under the NPRM, an applicant for 
an RLV mission license would be required to submit procedures for 
monitoring and verifying the status of safety-critical systems 
immediately before and during mission operations.
    At the February 11, 1999 public meeting, concerns were raised that 
requiring real-time data may be cost prohibitive or impossible to 
obtain. In response to industry concerns, the NPRM did not include a 
requirement that data be obtained in real-time fashion. Rather, some 
delay in data relay would be acceptable as long as an applicant's 
procedures are adequate to accomplish the regulatory objective of 
ensuring reentry flight is initiated only under nominal conditions or 
non-nominal circumstances evaluated and approved for safety impacts. 
However, the FAA cautions that, as for ELVs, should data be lost due to 
an event before it can be recovered, it will be more difficult to 
address and resolve potential safety issues before the next flight may 
be conducted.
    Some misunderstanding appears in the comments because the terms 
``launch'' and ``reentry'' by definition include operations other than 
flight. However, the regulatory text reflecting the requirement to 
monitor safety-critical systems, proposed Sec. 431.43(a)(4) and (e)(1), 
refers to the ``mission'' and to flight, respectively. Under 
Sec. 431.35(a) of this final rule, the FAA defines the term ``mission'' 
for purposes of part 431 to mean licensed flight. For purposes of 
clarity, the monitoring requirements that appear in Sec. 431.43 of the 
final rule are modified to reflect mission flight and not pre-or post-
flight ground operations.
    A number of comments objected to the perceived requirement that the 
ability to monitor safety-critical systems necessarily means that 
telemetry must be fed to a manned control center, and the attendant 
costs of such a requirement. The COMSTAC report also indicates that the 
FAA should not assume that RLVs will be limited to ground control 
systems. Prospective operators of piloted RLVs questioned whether 
monitoring must be performed on the ground or whether crew members on 
the vehicle could function as data monitors and fulfill the regulatory 
requirement. The FAA does not specify in the final rule the precise 
means or the form in which data is received by a vehicle operator in 
order to remain compliant with the regulations, nor where data must be 
received. Although telemetry is the typical means of accessing data, 
particularly for unmanned systems, the FAA would consider acceptable 
other means of monitoring data that satisfy the regulation. For 
example, the crew of an RLV may be an adequate means of monitoring 
status of safety-critical systems and the applicant's procedures, 
submitted in accordance with Sec. 431.43(a)(4), must demonstrate that 
using on board personnel will be adequate to perform the intended 
purpose of the requirement. However, the crew would also be a safety-
critical system inasmuch as their performance would be essential to 
safe operation and, through the system safety process, an applicant 
would need to show that risks to public safety are sufficiently 
mitigated in the event the crew became incapacitated. An applicant's 
system safety process would address the adequacy of medical 
qualifications of crew members in the performance of safety-related 
responsibilities. Advisory guidance offered by the agency, Advisory 
Circular AC No. 431.35-2, refers to 14 CFR part 67, first-class airman 
medical certification requirements, in providing guidance on medical 
qualifications of crew members that, if satisfied, may be relied upon 
by an applicant as part of its system safety process. The results of 
hazard identification and risk assessment analyses would determine 
whether, and the extent to which, deviations from such medical 
qualifications would contribute to mission risk, and whether those 
contributions are acceptable because risk criteria for the mission are 
not exceeded or are sufficiently mitigated.
    One commenter noted that there may exist safety-critical systems 
whose integrity and performance cannot be monitored when an RLV is on 
orbit. For example, the vehicle's heat shield may have been impaired or 
compromised during launch flight or while the vehicle is on orbit. The 
FAA acknowledges that there are some systems that may be critical to 
safe reentry flight of an RLV for which it is impossible to gather 
flight data prior to initiating the descent from orbit to Earth. For 
those systems, the applicant would seek relief from the requirement, or 
a waiver, to conduct monitoring of such systems after the RLV has been 
launched. A grant of relief from the requirement would be conditioned 
upon a determination by the FAA that public safety is not compromised 
as a result. For example, if an applicant has performed testing and 
analysis during development and before launch of an RLV that supports a 
finding that a system, not otherwise subject to monitoring, is 
sufficiently reliable then the requirement to monitor that system may 
be removed or waived.
    Another comment questioned the requirement to monitor safety-
critical system status ``immediately'' before enabling reentry flight. 
The FAA revises this requirement in the final rule to reflect the need 
for monitoring of such systems, proximate in time to initiation of 
reentry flight, in order to verify readiness and capability to 
accomplish safe return to Earth. For some vehicles, data obtained one 
or perhaps more than one orbit before de-orbit burn is initiated will 
be sufficient to achieve the regulatory objective of mitigating risk to 
public safety.
C. Positive Enabling of Fail-Safe Reentry
    The proposed rules require an operator to issue a command enabling 
reentry of an RLV from orbit. The rationale provided in the NPRM 
explains that positive control over reentry flight is necessary to 
ensure that reentry occurs under the conditions necessary to ensure 
that risks to public safety do not exceed acceptable levels.

[[Page 56628]]

Safety-critical systems must be verified for status and proper 
configuration, airspace may need to be cleared in the reentry corridor, 
and vehicle operational constraints must be satisfied, among other 
things, before reentry flight may be initiated. An applicant would be 
required to submit procedures as part of an application that ensure 
conformance with this restriction.
    The operational restriction prohibiting a totally autonomous 
reentry of an RLV from orbit generated numerous comments and 
objections. Kistler, in particular, objected to requirements that 
expressly require a person in the loop stating that such requirements 
would amount to a design, rather than a performance, standard and that 
autonomous systems should be assessed on a case-by-case basis. The FAA 
disagrees with Kistler's characterization of the requirement. Although 
positive enabling is required, the FAA does not dictate how enabling 
would be accomplished.
    At the February 11, 1999 public meeting and as reflected in the 
COMSTAC report, industry representatives argue that on board autonomous 
systems can be made equally effective and reliable as systems relying 
on personnel on the ground. The FAA agrees that this may be so and does 
not intend to preclude or inhibit development of RLVs incorporating 
innovation in autonomous control. Current ELV functions utilize 
autonomy in the separation and ignition of upper stages, fairing 
separation and payload deployment, and for non-nominal situations where 
human response is inadequate, such as autonomous engine shutdown to 
avoid imminent catastrophic failure. The FAA supports continued use and 
development of autonomous systems.
    One comment observed that placing a human in the loop creates 
opportunities for other systems to fail. Even so, the FAA maintains 
that it is preferable from a safety validation standpoint to assure an 
opportunity exists to confirm conditions for safe reentry. Kelly 
suggested that each developer be allowed to propose a reentry 
initiation approach that ensures public safety while enabling the 
vehicle developer to capitalize on the unique operational 
characteristics of the developer's concept of operations. 
Notwithstanding the benefits of Kelly's proposed approach to ensuring 
safe reentry, the FAA has great concern over the complexity of 
autonomous RLV systems and their reaction to a nearly infinite number 
of system failure combinations that may occur.
    The FAA is aware that even with a positive enabling command 
problems may still occur, particularly if the command is based on poor 
quality or inaccurate information. For example, a Chinese reentry 
capsule was commanded to fire its descent motor at the proper time; 
however, it was in reality pointing about 90 degrees off of its planned 
attitude. As a result, the vehicle did not reenter but instead went 
into an orbit from which it decayed about two and a half years later. 
The FAA's regulatory approach to reentry safety is intended to avoid 
problems of this nature, to the extent they are foreseeable and 
predictable.
    Lockheed Martin commented that the proposed rule appears contrary 
to current expendable launch vehicle practice where many critical 
activities, such as ignition of an upper stage, may be controlled 
autonomously within the vehicle. In place of the proposed requirement, 
Lockheed Martin recommended changing the requirement such that a 
positive command disabling an RLV would be required instead of a 
positive enabling command. The FAA declines to adopt the recommendation 
because it would not allow for the positive control that the FAA 
considers necessary. Lockheed Martin's suggestion would not adequately 
address a situation where, for example, a communications failure 
results causing the vehicle to begin reentry without an opportunity to 
independently check and verify the status of safety-critical systems.
    The FAA retains the requirement for positive enabling of reentry 
flight in the final rule. and does so In the final rule, the FAA 
imposes a requirement for positive enabling of reentry for public 
safety assurance purposes in fulfillment of its statutory 
responsibility for safety. The FAA believes that there must be an 
opportunity to abort reentry flight and leave an RLV on orbit when 
conditions for safe reentry cannot be verified. Sole reliance by an 
operator on an autonomous system would not be sufficient from a public 
safety standpoint where safe limits on public risk exposure cannot 
otherwise be assured and public safety could be compromised. The final 
rule does not prohibit some autonomous operation of an RLV or reentry 
vehicle. Rather, the FAA requires that an operator verify the status of 
safety-critical systems prior to enabling the reentry process. Human 
intervention to issue a command enabling reentry of a vehicle is not 
limited to initiating de-orbit burn. The reentry process that is 
enabled may, in fact, be an autonomous one. Human intervention may be 
accomplished by flight crew, as Pioneer Rocketplane (Pioneer) intends. 
The FAA envisions that the requirement for a person in the loop to 
positively enable reentry might possibly be relaxed in the future as 
RLV performance and flight history develops. By establishing regulatory 
requirements for human control for functions critical to public safety 
at this early stage of RLV development, the FAA does not intend to 
exclude or inhibit development and use of autonomous control systems 
for RLV nominal flight.
    Comments pointed out the corresponding need to assure safe return 
to Earth of vehicle stages, other than RLVs from orbit, such as an 
expendable upper stage of a vehicle where a multi-stage vehicle is 
used. The FAA agrees. Where a vehicle stage operates ballistically as 
part of an RLV launch system, but is not itself a reentry vehicle, the 
flight trajectory for launch must be designed such that expected 
casualty criteria for the mission are not exceeded. Despite Vela's 
objection, this requirement is not qualitatively different than that 
applicable to an ELV. Although the de-orbit of an ELV upper stage is 
not a licensed event, its contribution to expected casualty, 
historically an extremely small amount, is considered as part of an FAA 
licensing determination.
D. Reentry Sites
    To further mitigate risk to public safety, the FAA proposed a size 
suitability restriction on the landing area designated for an RLV or 
other reentry vehicle. The size suitability restriction would apply to 
those areas designated by a license applicant for a vehicle landing 
under nominal and non-nominal circumstances. It would also be used to 
determine whether a reentry site operated under an FAA license could be 
designated by an RLV or reentry vehicle operator as a proposed location 
for reentry of its vehicle.
    The size of the site selected as the landing area would have to be 
sufficiently large such that the vehicle would land within its 
boundaries with a .997 probability rate, assuming no major system 
failure that would make reentry essentially an entirely random event. 
The NPRM referred to the three-sigma dispersion of a vehicle as the 
basis upon which to calculate the necessary size of the landing area. 
The term ``three-sigma'' refers to three standard deviations from the 
mean, or average point, assuming a standard normal distribution. 
Atmospheric, meteorologic and other external conditions assumed in 
calculating the three-sigma dispersion of a vehicle would become 
conditions of the

[[Page 56629]]

authorization granted to reenter at that location. Alternatively, the 
area designated could be adjusted to accommodate different conditions 
or variables.
    Reference to the three-sigma dispersion of an RLV appears in two 
provisions of the regulatory text governing launch and reentry of an 
RLV (Secs. 431.35(d)(8) and 431.43(b)(1)). Additionally, a licensed 
operator of a reentry site would be limited to offering its site for 
use in support of vehicle reentries for which the three-sigma 
dispersion footprint of the vehicle would be wholly contained within 
the site. For an RLV mission license, an applicant would be required as 
part of the system safety process that includes hazard identification 
and risk assessment to provide flight trajectory analyses for launch 
flight through orbital insertion and reentry flight through landing. 
Flight trajectory analyses must include the three-sigma dispersion of 
the vehicle. An applicant for an RLV mission license would also have to 
designate the area in which its vehicle and any vehicle stage would 
land under nominal circumstances, and if an applicant relied upon the 
use of pre-designated contingency abort locations to satisfy acceptable 
risk criteria for the mission then those locations would also need to 
be identified. A designated landing location, whether for nominal 
operations or in the event of reliance by an applicant upon contingency 
abort capability, would be of suitable size under the proposed 
restriction if 997 times out of 1,000 attempts, vehicle or vehicle 
stage landing would be wholly contained within the designated location 
and if the location is sufficiently large that it would contain all 
landing impacts, including debris dispersion, any toxic release, and 
overpressure resulting from an explosion. The latter requirement means 
that a location designated to support reentry of an RLV or other 
reentry vehicle must be far enough away from a populated area such that 
debris, toxic release, and overpressure effects from an explosion would 
not jeopardize public safety if splatter or wind effects cause 
hazardous materials to pass beyond the boundary of the designated 
location, even though a vehicle's landing point was within its 
boundary. As an example, for a reentry site that utilizes a runway for 
vehicles that land horizontally, the three-sigma landing footprint 
includes the point of touchdown and the vehicle rollout. In all cases, 
based on the three-sigma footprint, any toxic fumes released from the 
vehicle after landing, in the case of normal operations (e.g., at end 
of rollout) or in the event of vehicle failure, should remain within 
the reentry site as well as any debris or adverse overpressure effects 
from an explosion.
    The supplementary information provided in the NPRM to explain the 
three-sigma site suitability criterion referred to vehicle 
maneuverability in defining the area that comprises a designated 
reentry location. In doing so, the FAA improperly referred to an 
elliptical contour, rather than a footprint, prompting comments on the 
accuracy of the .997 probability rate utilized by the FAA. The FAA did 
not intend to refer to within-track and cross-track error, necessarily 
a bivariate calculation of the probability of landing accuracy. Rather, 
the FAA intends to apply a univariate measure of acceptability under 
which a reentry location may be of suitable size if the vehicle will 
land within it at a .997 probability rate. Statistically, the three-
sigma dispersion limitation means that no more than 3 out of 1000 
landings from an RLV reentry would lie outside of the designated 
location.
    Kistler commented that the FAA needs to identify the contributors 
to the three-sigma dispersion of a vehicle or agree to negotiate them 
with an applicant. Dispersion factors may vary for different vehicles; 
therefore, the FAA declines to list them in this regulation. Instead, 
dispersion factors would be identified by an applicant as part of its 
hazard identification and risk assessment and evaluated by the FAA 
through the licensing process. As part of that process, the FAA would 
determine whether all significant contributors to a vehicle's three-
sigma dispersion have been identified.
    From the perspective of ensuring aeronautical operations are not 
jeopardized by RLVs, the Aircraft Owners and Pilots Association (AOPA) 
observed that RLV controllability during launch flight is much better 
than during reentry flight and that vehicle design and technology 
should accommodate the impacts of meteorological conditions on a 
vehicle's three-sigma dispersion. The FAA understands that RLVs will be 
of varying controllability during reentry flight, depending upon the 
technology employed. RLVs that can be controlled more precisely should 
exhibit smaller dispersion patterns along their trajectory because of 
the operator's ability to maneuver them and lessen the effects of 
perturbing atmospheric forces. Vehicles need not have wings to be 
maneuverable. A capsule that is a reentry vehicle could act as a 
lifting body during reentry flight and gain some degree of 
maneuverability.
    AOPA commented and NorthStar Spaceport Corporation (NorthStar) 
echoed concern that meteorologic forces may affect three-sigma 
trajectory dispersion. The FAA agrees and notes that other contributors 
to trajectory dispersion must also be identified as part of an 
applicant's hazard identification and risk assessment. These may 
include the duration and angle of de-orbit burn, as well as the 
accuracy with which dispersion modeling is performed. Variables such as 
those listed in this paragraph may become part of the conditions under 
which reentry would be authorized. For example, if vehicle operational 
characteristics were assessed assuming certain wind conditions, reentry 
would not be allowed at a time when those conditions did not exist.
    Trajectory dispersion modeling for RLVs and other reentry vehicles 
during nominal and non-nominal flight may also be useful to the FAA in 
determining appropriate airspace clearances. Comments to the NPRM 
suggested that use of a reentry corridor or box within which an RLV 
reenters controlled airspace, and the three-sigma dispersion of a 
vehicle would assist in defining that area. Vela commented that 
aircraft-like RLVs that are controlled through reentry flight would 
require clearance comparable to similar aircraft, whereas a ballistic 
reentry of a capsule-like vehicle would likely require a larger 
clearance zone.
    Operation of RLVs within the national airspace system is under 
review by the FAA as the agency develops its concept of operations for 
an integrated air and space traffic management system. It is beyond the 
scope of this rulemaking to stipulate how airspace clearances will be 
designed and implemented by the FAA to accommodate emerging RLV and 
reentry vehicle traffic.
    Kistler expressed concern over the three-sigma dispersion size 
suitability requirement of a reentry site, as expressed in the draft 
interim safety guidance, noting the cost of preparing an entire site 
for vehicle landing. The FAA imposes no requirement that an entire 
location be leveled or otherwise prepared to ``host'' the landing of an 
RLV or other reentry vehicle. The manner in which a landing site is 
prepared may affect mission success in terms of the ability of a 
vehicle to withstand landing impacts but is not dictated by the FAA in 
this rule. The size requirement imposed upon a landing site is 
determined for the

[[Page 56630]]

purpose of protecting the public, not the vehicle, from landing 
effects.
    In summary, and in response to AOPA's and Kistler's comments, the 
FAA's concern with respect to the three-sigma dispersion of an RLV or 
other reentry vehicle is two-fold. First, the risk of a non-nominal 
trajectory and the resultant dispersion of a vehicle in the event of 
failure must be addressed as part of the system safety process employed 
by an applicant, typically through hazard identification and risk 
assessment, to ensure that risk to public safety is contained at an 
acceptable level. Second, risk of an errant, off-site landing must be 
limited in the interest of public safety. Accordingly, an applicant 
must designate an appropriate location at which its vehicle will land 
with a sufficient degree of predictability, established by this final 
rule as 997 out of 1,000 landing attempts. Size of the location is not 
the sole determinant of suitability. The consequences of a vehicle 
landing in a designated location must also be contained within the site 
or sufficiently removed from public exposure for the site to be 
suitably located. As illustrated above, an RLV that lands on a runway 
touches down in one spot but continues to roll. The area required for 
continuing roll of the vehicle must be controlled area that does not 
expose the public to risk or it must be part of the designated location 
itself. Similarly, a narrow landing location may not be appropriate if 
toxic fumes released upon landing could be blown outside of the 
location or a controlled area such that the public is exposed to them. 
The final rules retain the operational restrictions proposed with 
respect to suitability of a location designated for an RLV or other 
reentry vehicle landing, including contingency abort locations in the 
event a licensee designates one or more such locations as part of its 
application.

Scope of RLV Mission and Reentry Licensing Under the Final Rule

    The FAA's proposed approach to combining launch and reentry 
authorization in a single license covering an RLV mission was endorsed 
by a number of comments. However, the scope of licensed activity, as 
described in the NPRM, prompted a good deal of discussion in the 
comments. Many more detailed comments on the appropriate scope of FAA 
licensing authority were received in response to proposed rules 
governing reentry financial responsibility. Accordingly, a more 
complete discussion of RLV launch and reentry licensing coverage 
appears in the companion rulemaking.

1. Comments on Scope of RLV Launch Authorization.

    The NPRM proposed to continue inclusion of pre-flight ground 
operations beginning with the arrival of a launch vehicle or payload at 
a U.S. launch site in the definition of launch, as codified at 14 CFR 
401.5, for purposes of licensing an RLV mission. USA took issue with 
the definition of ``launch'' codified in final rules at 14 CFR 401.5, 
despite statutory direction that the term ``launch'' includes 
activities involved in the preparation of a launch vehicle and payload 
for launch, when those activities take place at a launch site in the 
United States. 49 U.S.C. 70102(3). USA recommended that launch begins 
when an operator places a vehicle at the launch pad with the intent to 
launch the vehicle. B-G commented against licensing of pre-flight 
ground operations before the launch vehicle is loaded with propellants 
or other hazardous materials because worker safety during the conduct 
of such operations is otherwise regulated by the Occupational Safety 
Health Administration (OSHA). Moreover, including such operations as 
part of a launch would subject them to additional environmental 
scrutiny, according to B-G. B-G recommended that launch begins when the 
vehicle is loaded with propellants or other hazardous materials.
    Lockheed Martin and NorthStar specifically endorsed inclusion of 
ground operations, before and after RLV flight, as part of licensed 
launch activity; however, NorthStar would not be particular about 
whether post-flight ground operations and vehicle remediation, if any, 
would be considered part of licensed reentry or the next licensed 
launch. ERPS similarly viewed pre-flight operations and post-flight 
operations after an RLV returns to Earth as properly within the FAA's 
licensing authority; however, maintenance unrelated to a particular 
flight would not be licensed activity in its view.
    In this final rule, the FAA does not intend to redefine the 
commencement of a licensed launch for purposes of an RLV mission. Pre-
flight operations at a launch site are regulated by the FAA as part of 
launch, consistent with the CSLA definition, because of the risks posed 
to public safety and the safety of property. For purposes of pre-flight 
safety and risk, the FAA makes no distinction between an RLV and an ELV 
launch.
    Comments on the definition of launch included a number of 
recommendations governing the end of launch flight for purposes of FAA 
licensing jurisdiction. B-G suggested retaining the licensee's last 
exercise of control over its launch vehicle for a suborbital launch 
vehicle. For an orbital vehicle, B-G suggested that launch ends when a 
vehicle is placed in a long-lived orbit, defined as 30 days or more or 
the last exercise of control, whichever comes first. Vela commented 
that using the ELV definition of launch is inappropriate for an RLV 
because an RLV may rely upon autonomous systems, such that the vehicle 
is no longer under the operator's control although flight continues, 
and because an RLV would be ``launched'' when it lands as part of a 
reentry because it has arrived at the launch site.\6\ ERPS recommends a 
three-phased approach to an RLV mission consisting of a launch, on 
orbit and reentry phase. The launch phase would be defined as ending at 
the conclusion of powered flight, when the vehicle has attained its 
intended initial orbit, or its intended suborbital trajectory. Under 
the ERPS definition of launch, payload deployment, the event proposed 
by the FAA as marking the end of licensed launch of a typical RLV, 
would be an on-orbit operation not subject to FAA licensing.
---------------------------------------------------------------------------

    \6\ The companion rulemaking governing reentry financial 
differentiates between vehicle landing at a reentry site and arrival 
of a launch vehicle at the gate of a launch site for purposes of 
implementing FAA launch licensing authority.
---------------------------------------------------------------------------

    The FAA disagrees with B-G's and Vela's comments and agrees to some 
extent with the phased approach suggested by ERPS for an RLV mission. 
However, as explained in greater detail in the companion rulemaking 
governing reentry financial responsibility, the FAA explains that the 
end of an orbital RLV launch is defined at payload deployment for RLVs 
having payload deployment as a mission objective. For other RLV 
missions, the launch phase concludes upon completion of one orbit in 
steady-state condition at the location intended by the licensee.
    TGV sought clarification of the definition of the term launch such 
that it would exclude low energy test flights that remain within the 
atmosphere below an altitude of 50,000 feet. The FAA will not prejudge 
whether a flight test requires FAA licensing or may be accomplished 
under an experimental airworthiness certificate. Such decisions will be 
made on an individual basis to ensure consistency with FAA statutory 
authority and direction.

2. Comments on Scope of Reentry Authorization.

    The NPRM proposed to define ``reentry'' to include those on-orbit

[[Page 56631]]

activities conducted to determine reentry readiness and that are unique 
to reentry and critical to ensuring public health and safety and the 
safety of property during reentry.
    Kistler commented that the definition of reentry is unnecessarily 
broad and could lead to licensing of all on-orbit activities. Kistler 
proposes two alternative definitions. The first would define reentry to 
begin upon creation of an IIP. The second alternative would include 
checkout for the deorbit maneuver. ERPS commented that for an RLV in 
low Earth orbit, reentry begins at preparation for retrofire. For other 
vehicles, reentry begins at preparation for atmospheric interface. 
Examples of such other vehicles include those on suborbital 
trajectories that do not require retrofire to reenter, vehicles in 
geosynchronous orbit for which retrofire occurs hours before 
atmospheric interface, and vehicles returning from the Moon for which 
retrofire would occur days before atmospheric interface.
    To summarize the FAA's response to comments on the appropriate 
scope of FAA reentry licensing, the FAA has determined that its 
licensing authority must cover reentry readiness activities conducted 
on orbit in order to ensure that the FAA fulfills its public safety 
mandate. The definition of reenter codified in this final rule includes 
those activities and the licensing process would be utilized to 
identify when those activities begin for a particular vehicle or 
reentry proposal. A more complete discussion of FAA licensing authority 
over reentry appears in the companion rulemaking governing reentry 
financial responsibility.
    The FAA understands that there are activities conducted on orbit 
that are part of reentry readiness and would fall within the definition 
of reentry except that they may also be performed for other mission 
purposes and are therefore not ``unique'' to reentry. Accordingly, as 
explained in greater detail in the companion rulemaking, the FAA 
modifies the definition of reentry in the final rule to more accurately 
delimit those activities that may be comprehended by the FAA's 
licensing authority and has removed reference to ``unique'' activities.
    The FAA requested public comment on the appropriate commencement of 
licensed reentry when reentry has been delayed by design for an 
extended duration. For delayed reentry by design, Kelly suggested that 
reentry begins with initiation of procedures for reentry preparation. 
The FAA considers that Kelly's suggestion is qualitatively consistent 
with the definition proposed in the NPRM under which reentry includes 
activities conducted in space to determine reentry readiness.
    Kelly urged that licensed reentry ends when an RLV touches down on 
Earth. However, the FAA has determined that ground operations performed 
to secure a vehicle upon its return to Earth would properly be part of 
licensed activity to ensure that public safety is not jeopardized by an 
RLV that has landed. Securing a vehicle would include activities 
performed to ensure that hazardous materials on board the vehicle will 
not be inadvertently released and expose the public to risk. 
Propellants may need to be removed from the vehicle and other hazardous 
or toxic substances must be contained. The definition of the term 
``reenter'' is clarified in the final rule to include post-flight 
ground operations necessary to render an RLV or other reentry vehicle 
safe to the public.

Section-by-Section Analysis and Summary of Additional Comments

    Summarized in this section are comments addressing particular 
provisions of the proposed rule and additional analysis of some 
alternatives considered by the FAA in issuing final rules. Additional 
explanation and clarification of certain provisions of the rule is are 
also provided. Sections are described and discussed in numerical order; 
however, nonsubstantive changes in the regulatory text of the final 
rule are not specifically identified.

Section 400.2  Scope

    Section 400.2 identifies the scope of regulations presented in 14 
CFR Chapter III as commercial space transportation activities subject 
to 49 U.S.C. Subtitle IX, chapter 701. As proposed, Sec. 400.2 would 
exclude ``exempted-class rocket activities'' from coverage under 14 CFR 
Chapter III. Reference to ``exempted-class'' was intended to mean those 
activities not subject to FAA licensing. Since 1988, activities not 
subject to FAA licensing under 14 CFR 400.2 have been identified as 
amateur rocket activities and space activities carried out by the 
United States Government on behalf of the United States Government. 
Instead of adding a new term to the regulations, the final rule reverts 
to the 1988 formulation of activities for which an FAA license is not 
required.

Section 401.5  Definitions

    These following new terms are the same as those introduced in the 
NPRM in Sec. 401.5. They are ``contingency abort,'' ``emergency 
abort,'' ``flight safety system,'' ``operation of a reentry site,'' 
``reenter,'' ``reentry accident,'' ``reentry incident,'' ``reentry 
operator,'' ``reentry site,'' ``reentry vehicle,'' ``reusable launch 
vehicle,'' ``safety-critical,'' and ``vehicle safety operations 
personnel.'' The term ``mishap'' is revised to include reentry events.
    The NPRM inadvertently failed to make a distinction in the 
definition of ``launch'' between the end of ELV flight and RLV flight, 
although it was described in the supplementary information. In the 
final rule, the FAA clarifies that for purposes of an ELV launch, 
flight ends after the licensee's last exercise of control over its 
launch vehicle. For purposes of an orbital RLV launch, flight ends 
after deployment of a payload for an RLV having payload deployment as a 
mission objective. For other orbital RLVs, flight ends upon completion 
of the first sustained, steady-state orbit, at the intended location of 
the RLV.
    The final rule defines the term ``reenter'' differently from that 
proposed. For purposes of clarity, the term defined also includes the 
noun form, ``reentry.'' ``Reenter; reentry'' includes activities 
conducted to determine reentry readiness that are critical to ensuring 
public health and safety and the safety of property during reentry 
flight. However, reentry readiness activities need not be unique to 
reentry in order to be included as part of a licensed reentry. They 
must, however, be performed for the express purpose of initiating 
reentry and must be safety-critical from a public safety perspective to 
be included as licensed activity. ``Reenter; reentry'' consists of 
those on-orbit activities just described, reentry or descent flight and 
certain ground operations after landing on Earth to ensure a reentry 
vehicle will not pose a threat to public health and safety and the 
safety of property. The definition of ``reenter; reentry'' is clarified 
to remove reference to activities unique to reentry and include 
specific reference to post-landing ground operations. The interested 
public is referred to the comprehensive discussion of activities 
comprehended by the term ``reentry'' that appears in the companion 
rulemaking governing reentry financial responsibility.
    ``Flight safety system'' is a defined term, abbreviated as FSS for 
ease of reference in the supplementary information portion of the NPRM. 
The AOPA recommends use of another abbreviation to avoid confusion with 
``flight service station,'' a term used in the Federal Aviation 
Regulations codified at 14 CFR parts 1-198. The FAA makes no change to 
the final rule on the basis of the comment because no confusion in 
terminology has been evidenced to date. The FAA will

[[Page 56632]]

reconsider this terminology if a problem becomes apparent.
    ``Hazardous materials'' is defined to mean those identified as 
hazardous materials in 49 CFR 172.101. B-G commented that the 
definition should be limited to hazardous materials under 49 CFR 
172.101, as applied to cargo aircraft. 49 CFR 172.101 contains a table 
of hazardous materials for the purpose of transportation of those 
materials. Materials are identified by hazard class and the table 
further references requirements applicable to labeling, packaging, and 
quantity limits of those materials aboard aircraft. However, any 
materials listed in the table are considered hazardous for purposes of 
14 CFR chapter III and no change is made to the definition in the final 
rule.
    The NPRM defined ``operation of a reentry site'' in a manner 
similar to ``operation of a launch site.'' NorthStar suggested removing 
reference to ``safety operations'' from both definitions and replacing 
it with the phrase ``licensed operations.'' The FAA uses the term 
``safety operations'' to denote those activities conducted at a launch 
or reentry site that may pose a risk to public health and safety and 
the safety of property and for which licensing is therefore required. 
Other activities, although conducted at a launch or reentry site, may 
not require regulatory oversight by the FAA. Reference to ``safety 
operations'' is therefore retained in the final rule definitions.
    ACTA suggested that the term ``safety-critical'' in the context of 
demonstrating acceptable RLV mission risk should be limited to that 
which has a direct potential effect on public safety. The FAA agrees 
and has adjusted the definition to clarify that safety-critical means 
critical to public safety.
    Kelly and ERPS proposed additional terms for possible inclusion in 
Sec. 401.5. Kelly suggested adding a definition of ``exempted-class 
rocket activities.'' The FAA has removed reference to exempted class 
rocket activities that appeared in proposed Sec. 400.2 and there is no 
longer a need to define the term. Kelly also suggested adding 
definitions for ``expectation of casualty'' and ``impacted landmass.'' 
The final rule refers to acceptable risk, which is measured in terms of 
the expected average number of casualties to the collective members of 
the public exposed to debris impact hazards. An FAA Advisory Circular, 
AC No. 431.35-1, provides detailed guidance on how casualty expectation 
may be calculated for purposes of operating a launch or reentry 
vehicle. Accordingly, the FAA does not agree that further definition of 
the term ``expectation of casualty'' is required. The FAA also does not 
find a need to define ``impacted landmass,'' as that term appears only 
in explanatory information and not the regulatory text.
    ERPS, Orbital Sciences Corporation (Orbital Sciences) and Pioneer 
Rocketplane suggested delimiting where ``outer space'' begins. The CSLA 
defines ``launch'' as ``to place or try to place a launch vehicle or 
reentry vehicle and any payload from Earth--(A) in a suborbital 
trajectory; (B) in Earth orbit in outer space; or (C) otherwise in 
outer space, * * *'' 49 U.S.C. 70102(3). ``Reenter'' and ``reentry'' 
means to return or attempt to return, purposefully, a reentry vehicle 
and its payload, if any, from Earth orbit or from outer space to Earth. 
49 U.S.C. 70102(10). The reference to ``otherwise, in outer space'' may 
include interplanetary missions or travel to the Moon. A suborbitally 
operated RLV may be regarded solely as launch of a launch vehicle, 
although for licensing and regulatory purposes the FAA has determined 
to license suborbital RLVs under the RLV mission licensing regulations 
in order to ensure a consistent approach to safety issues presented by 
intact landing of a vehicle designed to survive atmospheric forces. 
Thus, for purposes of safety regulation and licensing, the difference 
between an RLV reentry that is conducted suborbitally from one that 
begins on Earth orbit is a distinction without a difference. As RLVs 
develop, the FAA would evolve a regulatory program that accommodates 
deep space exploration and transportation. For the near term, RLV 
missions chiefly target low Earth orbit and the final rule focuses 
principally on safety issues posed by such mission. Accordingly, it is 
not necessary to propose a delimitation of outer space in the final 
rule.
    In a similar vein, NorthStar suggested defining ``payload'' to mean 
an object that a person undertakes to place in space, rather than outer 
space. Although the FAA may agree with the suggestion, the agency 
retains the current definition of ``payload'' in the final rule simply 
to reflect the statutory definition that appears at 49 U.S.C. 70102(8).
    Orbital Sciences pointed out that because the definition of 
``reentry site'' refers to reentry vehicles, the landing site of 
booster stages of an RLV that do not reach Earth orbit are not 
regulated. The final rule does, in fact, provide criteria for suitable 
and attainable locations for vehicle staging impacts under 
Sec. 431.43(b). Therefore, a separate license is not required for a 
person to offer use of a location at which a vehicle stage may land 
although the location must satisfy safety and environmental criteria 
under RLV mission or reentry licensing criteria.

Section 404.1  Scope

    As in Sec. 400.2 of the final rule, the FAA replaces reference to 
``launch'' with ``transportation'' in describing the extent of 
activities to which part 404 applies. Part 404 provides the agency's 
procedures for issuing implementing regulations.

Section 404.3  Filing of Petitions to the Associate Administrator

    Section 404.3 is revised to include rulemaking petitions regarding 
reentry and operation of a reentry site.

Section 405.1  Monitoring of Licensed and Other Activities

    Section 405.1 provides that reentry sites and reentry vehicle 
manufacturing, testing, assembly and production facilities are subject 
to FAA monitoring and observation. The FAA may monitor licensee or 
contractor facilities at which a payload is integrated with a launch or 
reentry vehicle. NorthStar objected to FAA monitoring authority with 
respect to payloads otherwise unlicensed by a Federal agency and for 
which a favorable payload determination has been granted. NorthStar's 
comments focused on how monitoring and observation of payloads would 
affect the launch industry in terms of economy, fairness, and privacy.
    Under the CSLA, the FAA retains certain responsibility with respect 
to payloads to ensure that their launch or reentry does not jeopardize 
public health and safety, the safety of property or national interests 
of the United States. To fulfill this safety responsibility, the CSLA 
expressly grants the Secretary of Transportation legal authority to 
place a government officer or other observer at a site at which a 
payload is integrated with a launch or reentry vehicle and directs the 
licensee to cooperate with the observer. The final rule reflects the 
agency's statutory authority with respect to monitoring activities 
involving payloads and no change is made to this provision in the final 
rule.
    USA commented that information learned as a result of monitoring 
activities be subject to the confidentiality and non-disclosure 
requirements accorded a license application under Sec. 413.9. The FAA 
agrees that trade secrets or proprietary commercial or financial data 
disclosed to the agency under its statutory authority shall be accorded 
confidential treatment upon request. The CSLA allows disclosure of such 
information only where its non-disclosure is

[[Page 56633]]

determined by the Secretary to be in contrary to the public or national 
interest. 49 U.S.C. 70114. Given the statutory limitation on disclosure 
of such information, the FAA does not agree that it is necessary to 
include additional confidentiality and non-disclosure restrictions in 
the final rule governing monitoring of licensed activity.

Section 405.5  Emergency Orders

    Section 405.5 is amended by adding reentry and operation of a 
reentry site to the agency's authority to terminate, prohibit or 
suspend licensed activity.

Section 406.1  Hearings

    Section 406.1, as revised, reflects the rights of an owner or 
operator of a reentry payload, as well as any licensee, to a hearing.

Section 413.1  Scope

    The application procedures of part 413 of 14 CFR Chapter III also 
apply to applications for a license, or transfer or an existing 
license, to reenter a reentry vehicle or to operate a reentry site, as 
reflected in the final rule.

Section 413.3  Who Must Obtain a License

    Section 413.3 specifies that any person must obtain a license to 
reenter a reentry vehicle or operate a reentry site in the United 
States and that a U.S. citizen, as defined in 14 CFR 401.5, must obtain 
a license to reenter a reentry vehicle or operate a reentry site 
outside of the United States. Reentry and reentry site licensing 
requirements for foreign entities in which a U.S. citizen has a 
controlling interest are also specified and are comparable to those 
currently applicable to a launch and operation of a launchsite by such 
entities.
    USA sought clarification of the licensing requirement for reentry 
of a reentry vehicle launched by using a foreign owned or controlled 
launch vehicle. Section 413.3, as proposed in the NPRM and codified in 
the final rule, adequately covers such situations. An FAA license is 
required for any person to reenter a reentry vehicle in the United 
States and an FAA license is required for a U.S. citizen to reenter a 
reentry vehicle anywhere in the world, regardless of the location at 
which its launch occurred. Under part 435 of the final rule, acceptable 
risk for such a reentry would take into account the risk associated 
with its launch. Where a reentry vehicle is launched abroad by a 
foreign entity and its operator seeks a license to reenter in the 
United States, the FAA would require certain data of the launch 
provider upon which the FAA may determine acceptable risk for the 
proposed reentry is not exceeded, even though the launch would not be 
subject to FAA licensing. The launch provider would not be subject to 
FAA regulatory authority and cannot be compelled to cooperate with the 
FAA, however. As a practical matter, absent a sufficient basis upon 
which the FAA may determine acceptable risk is not exceeded, the FAA 
would be unwilling to license the reentry.

Section 413.5  Pre-Application Consultation

    No change was proposed to Sec. 413.5 in the NPRM; however, USA 
suggested a more detailed statement in the regulation as to the data 
the launch operator should have available when consulting with the FAA. 
The FAA uses pre-application consultation as an important means of 
identifying the data that will be required as part of an application 
for a license. The ``flesh on the bones'' sought by USA in its comment 
is derived through this informal consultative process which has worked 
successfully in identifying issues and data requirements associated 
with individual licensing proposals.

Section 415.1  Scope

    Section 415.1 of the final rule limits the scope of part 415 to 
requirements pertaining to licenses for launch of an ELV or other 
launch vehicle that is not an RLV. It refers the reader to part 431 of 
14 CFR Chapter III, subchapter C, ``Licensing,'' for RLV mission 
license requirements.

Part 431 Launch and Reentry of a Reusable Launch Vehicle (RLV)

    Part 431 of the final rule sets forth comprehensive requirements 
applicable to obtaining an RLV mission license and requirements for 
remaining in compliance with the license. A licensing determination for 
an RLV mission is based upon a number of approvals that must be granted 
by the FAA before it can issue a license. Requirements for obtaining 
approvals are contained in subpart B (Policy Review and Approval for 
Launch and Reentry of a Reusable Launch Vehicle), subpart C (Safety 
Review and Approval for Launch and Reentry of a Reusable Launch 
Vehicle), subpart D (Payload Reentry Review and Determination), and 
subpart F (Environmental Review). Requirements for obtaining approval 
to launch a payload appear in 14 CFR part 415. A licensee authorized to 
conduct an RLV mission must remain in compliance with certain ongoing 
terms of the license and terms and conditions of a license appear in 
subpart E (Post-Licensing Requirements--RLV Mission License Terms and 
Conditions).

Section 431.1  Scope

    Section 431.1 of the final rule provides that part 431 covers 
requirements for obtaining and remaining in compliance with an RLV 
mission license. An applicant for an RLV mission license is referred to 
part 413 of 14 CFR Chapter III, subchapter C, for application 
preparation requirements.

Section 431.3  Types of Reusable Launch Vehicle Mission Licenses

    An RLV mission for which a license may be granted under part 431 
consists of launch and reentry of an RLV. The two authorizations 
required for RLV launch and reentry are combined under a single license 
authorizing an RLV mission. An RLV mission license is also required to 
initiate authorized ascent and descent of a suborbital RLV.
    Consistent with launch licenses issued for ELVs, the FAA includes 
in the final rule provisions for granting two types of RLV mission 
licenses. The two types of licenses that may be issued are mission-
specific and operator licenses.
    A mission-specific license is used to authorize a licensee to 
launch and reenter, or land, one model or type of RLV from one approved 
site to the same or another approved site. One site would be approved 
for purposes of launch and one site would be approved for purposes of 
vehicle reentry or landing; however, the same site may be used to 
support both events. The NPRM omitted reference to a launch site 
approved for the mission and the omission is corrected in the final 
rule. The license would also authorize use of a contingency abort 
location for a particular RLV mission where an applicant has identified 
the location in order to satisfy risk criteria applicable to the 
mission.
    A mission-specific license is not limited by its terms to the 
conduct of a single RLV mission. Multiple missions may be authorized by 
the license; however, each mission is identified in the license. A 
mission-specific license may be used to authorize a flight test program 
involving one type of RLV for which launch and reentry or landing take 
place at the sites identified in the license. The license terminates 
upon completion of the missions authorized by its terms or the 
expiration date of the license, whichever first occurs.
    USA commented that the authorization granted by a mission-specific 
license ought not be limited to use of a single reentry site. The FAA

[[Page 56634]]

notes that a mission-specific license may also authorize use of a 
contingency abort location. However, the broader authorization 
suggested by USA would typically be granted by the FAA under the terms 
of an operator license. An operator license is issued to operators that 
have demonstrated their safety capability on an ongoing basis. An 
operator license authorizes RLV missions involving any one of a family 
of RLVs and identifies approved parameters, such as launch and reentry 
trajectories and any of a number of approved launch and reentry sites 
that may support the RLV missions authorized by the license. Based on 
historical experience with operator licenses for ELV launches, the 
final rule provides for a two-year renewable term of an operator 
license. NorthStar did not object to a two-year license term but 
suggested expedited renewal procedures. The FAA agrees that license 
renewals may rely upon existing documentation as long as it remains 
valid and complete and that the FAA should utilize procedures for 
expediting license renewals. The FAA has in fact employed this approach 
to renewing ELV operator licenses without compromising its safety 
mandate and intends to do so for RLV mission licenses.
    USA suggested that RLV operators with proven experience be able to 
``graduate'' to longer term licenses. The FAA agrees that, with 
experience, it may consider issuing longer term operator licenses, as 
was recently approved for ELV launches. Initially, the FAA granted two-
year renewals of ELV launch licenses and as a result of rulemaking 
proceedings determined last year to issue five-year operator licenses.

Section 431.5  Policy and Safety Approvals

    Section 431.5 establishes the requirement that an applicant for an 
RLV mission license must obtain policy and safety approvals. An 
applicant may seek the approvals in any order and may do so in advance 
of submitting a complete license application. Generally speaking, 
submission of an application for policy review of an RLV mission 
requires less technical information from the applicant and may be less 
burdensome to prepare. Based upon the FAA's experience in licensing ELV 
launches, early submission of information to support a policy review is 
useful to determine whether the FAA would disapprove a proposed mission 
for policy reasons before the applicant and the FAA undertake the 
considerable effort required for safety review and approval. The FAA 
believes that the same principle would apply to RLV mission licensing 
and therefore allows an applicant to apply for a license in parts.

Section 431.7  Payload and Payload Reentry Determinations

    Payloads proposed for launch on an RLV and/or for reentry are 
subject to FAA review unless exempt. Government payloads are exempt 
from FAA review and payloads subject to review for launch and/or 
reentry purposes by another Federal agency would not be subject to 
duplicative review by the FAA. However, notwithstanding approval by 
another Federal agency, the FAA would evaluate safety of vehicle flight 
involving a payload and the particular hazards it may present.
    For purposes of launching a payload, the requirements contained in 
part 415 governing payload review and determination remain applicable 
to an RLV mission. However, there may be different safety and policy 
issues arising out of reentry of a payload although it has been 
approved for launch and, accordingly, a payload reentry review and 
determination is a component of RLV mission licensing. Where one 
purpose of an RLV mission or other reentry is to retrieve a space 
object for the purpose of returning it to Earth, a payload reentry 
determination would be required. The FAA need not review on an 
individual basis each payload proposed for launch or reentry but may 
issue a favorable determination for a class of payloads that share 
similar characteristics. Similarly, the FAA may issue a favorable 
determination for reentry of a payload based upon a review performed 
for another RLV mission license, where the payloads are similar and 
pose comparable safety and policy issues previously considered by the 
FAA. Whereas only the license applicant for an RLV mission license may 
apply for policy and safety reviews necessary to support a license 
determination, a payload owner or operator may apply for a payload and 
payload reentry determination separate from the license application.
    Comments submitted by the X PRIZE Foundation recommended that where 
passengers are the payload, a single review should suffice for all RLV 
operations involving passengers. As already noted, this final rule does 
not address the unique policy and safety issues presented by passenger-
bearing RLVs. In the future, the FAA will examine human factors 
associated with crewed and passenger-bearing vehicles and, through 
rulemaking, may determine whether certain criteria affecting crew and 
passenger health and safety are appropriate.

Section 431.9  Issuance of a Reusable Launch Vehicle Mission License

    Section 431.9 provides that the FAA will issue either type of RLV 
mission license to an applicant who has obtained all of the required 
approvals and determinations required for that license. It further 
provides that the licensee's authorization to conduct an RLV mission is 
subject to its continued compliance with terms and conditions of the 
license. Terms and conditions include requirements for demonstrating 
financial responsibility for the mission. A companion rulemaking 
explains what a licensee must do to demonstrate compliance with reentry 
financial responsibility requirements.

Section 431.11  Additional License Terms and Conditions

    The proposed RLV mission licensing rules included a provision 
whereby the FAA may amend an RLV mission license by adding or modifying 
license terms and conditions to ensure compliance with the CSLA and 
applicable regulations. NorthStar commented that the proposal would 
allow for harassment and capricious intervention with a licensee's 
activities. USA commented that modifications of law of which a licensee 
is not aware may place a licensee in violation of law and that a 
procedure for implementing such modifications would be beneficial.
    FAA authority to modify a license is essential to its ability to 
fulfill its safety responsibility under the CSLA and to respond to 
changes in circumstances affecting public safety. Legal remedies and 
recourse are available to a licensee who believes its license amendment 
is arbitrary or capricious, including a right to a hearing as stated in 
14 CFR 406.1. The FAA does not negotiate license terms, contrary to 
NorthStar's suggestion, where public safety is at peril but does agree 
with USA that the FAA and a licensee can cooperate in defining means of 
implementing necessary modifications to operations to reflect safety 
needs or changes in law.

Section 431.13  Transfer of a Reusable Launch Vehicle Mission License

    Section 431.13 of the final rule states that only the FAA may 
transfer an RLV mission license and would do so where an applicant for 
transfer of the license has obtained all of the necessary approvals and 
determinations for the license. Findings already made by the FAA in 
issuing the license to the original licensee may be used to support a 
license transfer determination, to the

[[Page 56635]]

extent the findings remain valid and equally applicable to the 
transferee.

Section 431.15  Rights Not Conferred by a Reusable Launch Vehicle 
Mission License

    Section 431.15 of the final rule provides that issuance of an RLV 
mission license does not relieve the licensee of its obligations to 
comply with other legal requirements applicable to its activities.

Section 431.21  General

    This section of the final rule provides that the FAA will issue a 
policy approval to an applicant when the FAA has completed its review 
with favorable results.

Section 431.23  Policy Review

    Section 431.23 of the final rule describes the scope of the 
required policy review and the basis upon which a policy approval would 
be granted. The FAA reviews the information required by the agency as 
part of the review to determine whether the proposed mission would 
present any issues, other than issues evaluated as part of the formal 
safety review, that would adversely affect U.S. national security or 
foreign policy interests, including its international obligations, or 
that would jeopardize public health and safety or the safety of 
property. The FAA consults with other Federal agencies whose mandate 
may be affected by a proposed RLV mission. The FAA provides written 
notification to an applicant of any issue raised during the review that 
could hinder the agency's ability to issue a policy approval. The 
applicant then has an opportunity to respond to concerns raised as a 
result of the policy review or may modify its proposal and seek 
approval of the mission as modified.
    Space Access requested clarification of the role of other Federal 
agencies in the policy review conducted for a commercial mission. The 
following is offered as an example of the role other federal agencies 
may play in a policy review. A proposed RLV mission may include 
trajectories that could interfere with Shuttle operations. Through 
interagency consultation performed during the policy review, NASA would 
have an opportunity to examine proposed mission parameters with its 
missions in mind and note any potential conflicts. Overflight, during 
ascent or descent flight, of a foreign nation by an RLV may raise 
foreign policy concerns within the purview of the State Department. 
And, the Department of Defense would evaluate a proposed RLV mission 
from a national security perspective.
    USA pointed out the difference in policy review parameters for an 
RLV mission license from that undertaken with respect to an ELV launch. 
For an RLV mission, the FAA reserves authority to identify safety 
considerations from a policy, rather than a strictly technical or 
engineering perspective, similar to the policy review process utilized 
by the FAA during the initial ten years of ELV launch licensing. 
Commercialization of reentry capability may present safety 
considerations other than those identified as part of a safety review 
and subject to risk assessment and technical criteria. The FAA 
considers that early identification of such concerns through a policy 
analysis would better serve the prospective RLV industry than awaiting 
the results of a more technical safety review. As was done during the 
first ten years of ELV launch licensing, license applicants would have 
the benefit of obtaining a determination from the FAA at an early stage 
in mission planning as to whether ``show stopper'' safety 
considerations would present an obstacle to mission licensing even if 
safety review criteria were satisfied. For example, if a proposed 
flight trajectory for reentry flight of an RLV were designed such that 
the IIP for the three-sigma trajectory passes over a facility for which 
the consequences of collision or unplanned impact would be extreme, 
such as a chemical or petroleum storage facility, the FAA may conclude 
that, as a matter of policy, it is unacceptable to approve the proposed 
mission even though it would satisfy mission risk and other safety 
criteria of part 431. When used as an early warning device, the policy 
review has proved a useful and efficient means of identifying 
impediments to licensing due to general safety considerations. Because 
RLV technology, other than Shuttle, remains in a developmental stage, 
the FAA is not able to catalogue the safety considerations that may 
attend proposed RLV mission operations. For this reason, the FAA 
believes it reasonable and prudent to expressly reserve the authority 
provided by a policy review to consider safety implications of proposed 
RLV flight. Having gained the benefit of twelve years of licensing 
experience with respect to ELV launches, the FAA no longer considers it 
necessary to expressly include safety policy considerations under the 
policy review performed in support of an ELV launch license.
    ERPS asked when the FAA would advise an applicant of issues that 
would impede issuance of a policy approval and the FAA responds that it 
would do so upon obtaining responses from other Federal agencies 
reviewing a proposed mission or when the FAA, itself, identifies 
impediments to policy approval.

Section 431.25  Application Requirements for Policy Review

    Section 431.25 of the final rule lists, in detail, the information 
requirements necessary for the FAA to perform the required policy 
review for an RLV mission license. Requirements include basic technical 
data concerning the pro posed RLV as well as foreign ownership 
interests in the applicant.
    TGV commented that certain requirements seem more germane to a 
safety review than a policy review. Although the FAA agrees with TGV 
that technical data is needed as part of the safety review, the FAA 
requires certain basic information about a proposed mission in order to 
identify policy considerations that may result from use of vehicle 
systems, propellants, proposed flight trajectories and mission design.
    USA expressed concern over the requirement to identify reentry 
sites, including planned contingency abort locations, if any. USA 
stated that provision for use of emergency landing sites should follow 
an aircraft operation model such that a vehicle could land at an 
alternate site within a prescribed range of safety parameters. The FAA 
agrees with USA insofar as a flight plan for an RLV mission may 
identify locations at which a vehicle may land in an emergency 
situation in a manner that poses minimal risk to public safety. For 
such emergency situations, reference is commonly made to ``landing in a 
cornfield'' or other unpopulated area. However, the requirement 
identified in the final rule is for identification of locations, if 
any, that would be used for a contingency abort. Such sites are pre-
planned and their potential use may be identified as part of an 
application in order to meet mission risk criteria and are therefore 
separate and distinct from emergency abort landing situations.

Section 431.27  Denial of Policy Approval

    The FAA would notify an applicant in writing if it has determined 
that it cannot issue a policy approval and provide the reasons for 
denial. The applicant may respond with additional information and 
request reconsideration of the FAA's determination.
    Kelly suggested placing a time limit upon the policy approval 
process and early notification of issues. The FAA

[[Page 56636]]

disagrees with Kelly. The FAA anticipates that it would provide to an 
applicant early identification of issues that may impede issuance of a 
policy approval. However, other than the 180-day review period imposed 
by statute for agency review of an application, the FAA does not elect 
to impose additional time requirements upon processes for which it is 
often dependent upon other Federal agencies. The FAA reminds applicants 
that the 180-day time period for agency review of an application 
commences upon acceptance of an application and that an application is 
not accepted unless it is sufficiently complete in its entirety to 
enable the FAA to initiate the reviews and evaluations required for a 
licensing determination.

Section 431.31  General

    This section of the final rule describes in a general manner the 
safety review performed by the FAA to determine whether an applicant is 
capable of launching and reentering, or landing, an RLV and payload, if 
any, from and to a designated site without jeopardizing public health 
and safety and the safety of property. A safety review entails a 
technical, engineering analysis of launch and reentry flight risks and 
is necessarily tailored to the unique capabilities of a proposed 
vehicle and characteristics of a proposed RLV mission. Safety approval 
is a necessary element of a licensing determination and the FAA informs 
an applicant, in writing, of any issue raised during a safety review 
that may result in denial of safety approval. The applicant has an 
opportunity to respond and revise its application rather than waiting 
for a final determination on its application.
    ERPS and Kelly raised timing concerns comparable to those 
registered with regard to subpart B--policy review and approval. The 
FAA has, historically, consulted with an applicant on an ongoing basis 
when the agency requires additional information or clarification of a 
technical data submission in support of the safety review. A 
cooperative process, during pre-application consultation and while 
reviews are ongoing, is critical to ensuring the FAA has sufficient 
information to perform the reviews necessary for safety approval. The 
FAA intends to continue its interactive approach to technical reviews 
to facilitate licensing but does not impose a deadline upon itself for 
completion of the safety review other than the 180-day deadline imposed 
by statute for agency review of an application. Commencement of the 
180-day timeframe is defined in the discussion of the policy review and 
approval necessary for an RLV mission license.

Section 431.33  Safety Organization

    The NPRM proposed detailed requirements for an independent safety 
infrastructure maintained by an RLV operator in response to National 
Transportation Safety Board (NTSB) reports and the Rodgers Commission 
report that indicated independence is critical to an effective safety 
organization and safe transportation operations.
    Under Sec. 431.33(a), an applicant is required to document lines of 
communication and approval authority for public safety-related 
decisions. The common objective of maintaining lines of communication 
and approval authority is to ensure disciplined and appropriate 
communications and decisions during real-time to address public safety 
considerations. Compliance with regulations governing an applicant's 
communications plans is therefore a requirement for obtaining and 
maintaining an RLV mission license. As explained in the NPRM, decision 
authority over various aspects of an RLV mission, including authority 
to make a ``hold'' or ``go/no-go'' decision, may be dispersed among 
individuals and the personnel involved in executing an RLV mission must 
understand the role of each.
    Section 431.33(b) directs an applicant to designate a person 
responsible for the conduct of all licensed RLV mission activities.
    Section 431.33(c) mandates that an applicant identify a qualified 
safety official responsible for monitoring independently compliance by 
vehicle safety operations personnel with safety policies and procedures 
identified by the applicant in compliance with safety review 
requirements. The safety official must report directly to the person 
responsible under Sec. 431.33(b) for RLV mission activities who, in 
turn, must ensure that the safety official's concerns are resolved 
before initiating the mission and before initiating return flight of 
the vehicle to Earth. In addition, the safety official would be 
responsible for conducting monitoring and evaluating operational dress 
rehearsals to ensure readiness of certain personnel and completing a 
mission readiness determination. The safety official is also 
responsible for compliance with mission readiness requirements, 
operational requirements and restrictions, and adherence by a licensee 
with representations made in its application.
    Although the safety official bears great responsibility for safety-
related decisions, as described above, the safety official need not 
perform that function solely. To relieve concerns over cost burdens, 
particularly for smaller companies, the FAA notes that the rules do not 
require that the safety official perform only those functions. The 
rules do require, however, that the safety official remain independent 
of other safety personnel.
    NorthStar disagrees with the FAA dictating the internal 
organizational structure of an entity. NorthStar recommended that the 
reporting structure presented in the NPRM become a recommendation, 
rather than a requisite to licensing. The FAA does not accept 
NorthStar's recommendation. Based upon its experience in regulating 
aviation and launch operations, as well as NTSB safety recommendations, 
the FAA finds that an independent safety official that has direct 
access to the person responsible for the conduct of licensed activities 
can positively influence safety. Also, Federal Aviation Regulations 
codified at 14 CFR parts 1-198 require a part 121 certificate holder to 
have a qualified director of safety serving in a full-time capacity. 
See, e.g., 14 CFR 119.65(a)(1). For comparable safety reasons, the FAA 
requires in the RLV mission licensing rules that an applicant identify 
a safety official who will report directly to the person responsible 
for the conduct of licensed activities to ensure that management 
adequately considers and addresses public safety concerns before 
initiating vehicle launch or reentry flight. Maintaining an 
organizational structure whereby safety issues will be raised to the 
attention of the responsible person enables safety-related decisions to 
be made at an appropriately high level rather than being submerged.
    TGV sought a definition of the term ``qualified'' when used to 
describe the safety official. The FAA declines to impose specific 
educational and training requirements for an individual to function as 
a safety official under the final rule. Instead, an applicant would 
have to show that the individual is qualified to perform the required 
functions based upon the relationship between the individual's 
experience and responsibilities, which in turn may vary depending upon 
the operator's vehicle and operational concept.
    The X PRIZE Foundation commented that for piloted vehicles, 
ultimate responsibility for operational safety decisions should reside 
with the pilot in command. The FAA has not ruled out the possibility 
that the safety official could be the pilot of the vehicle. Much like a 
mission flight safety officer for an ELV launch, the pilot would have

[[Page 56637]]

authority to make a decision to abort a mission or continue planned 
flight. As long as that individual maintains independence from other 
safety operations personnel in terms of decision-making, and is 
qualified to perform the designated responsibilities, the FAA accords 
an applicant discretion to determine which individual within its safety 
organization shall function as the safety official under requirements 
of Sec. 431.33.
    ERPS commented that the safety official identified in the NPRM 
should not be responsible for conducting dress rehearsals, but rather 
for ensuring that they occur and then monitoring them. The FAA agrees 
and the regulatory text is modified in the final rule to reflect the 
safety official's responsibility for monitoring and evaluating dress 
rehearsals to ensure that they are conducted in accordance with 
procedures identified in the license application. ERPS further stated 
that reentry readiness determinations should be the responsibility of 
the flight director, not the safety official. The FAA is concerned with 
functions, not titles, and will accept as compliant with the 
requirement the designation of an official qualified and authorized to 
perform the functions of the individuals described in Sec. 431.33(b) 
and (c).

Section 431.35  Acceptable Reusable Launch Vehicle Mission Risk

    Ensuring that acceptable mission risk is not exceeded is one of the 
principal means the FAA employs to fulfill its public safety mandate in 
licensing RLV missions. For purposes of satisfying mission risk 
criteria, only those risks to the public that may result during 
authorized vehicle flight, that is, launch or ascent and reentry or 
descent flight to Earth, are included as part of the risk calculation. 
For purposes of assessing mission risk, pre-flight ground operations 
and post-landing activities are not included in determining the 
expected average number of casualties, on a collective risk or 
individual risk basis, to the public exposed to vehicle and vehicle 
debris even though these are licensed activities.
    The NPRM proposed two acceptable risk criteria that must be 
satisfied for an RLV mission as defined in Sec. 431.35(a), that is, 
during authorized flight of an RLV. Under Sec. 431.35(a), to qualify 
for safety approval, acceptable risk for the mission may not exceed a 
risk level of .00003 casualties per mission, or Ec criterion 
of Ec  30  x  10-\6\, to members of 
the public.
    The agency response to comments regarding application of a single 
risk measure to all licensed flight comprising an RLV mission is 
presented under the heading, ``Public Response to Three-Pronged Public 
Safety Strategy for RLV and Reentry Missions.'' In summary, Kelly 
endorsed the FAA's approach to combining launch and reentry risk 
associated with RLV flight thereby allowing an applicant to allocate 
risk to flight phases in its discretion. USA objected to a combined 
risk measure stating that launch and reentry should be treated as 
separate events. TGV also commented that launch and reentry should be 
licensed as separate events; however, TGV would apply an Ec 
of .00003 to each flight phase. Kistler objected to use of 
Ec altogether arguing that it is an unjustifiable assessment 
criterion, subjective and would stifle innovation.
    In response to the comments previously noted in the discussion of 
mission risk and Ec calculation, the FAA has determined to 
limit RLV mission risk to public safety to a level considered 
acceptable for current launch capability, that is, Ec 
 30  x  10-\6\, and allows an applicant 
flexibility to design a mission that satisfies the criterion.
    In addition, the NPRM included a provision to ensure persons 
located in areas near a reentry site are not exposed to unacceptable 
risk. Under proposed Sec. 431.35(b)(2), acceptable collective risk to 
persons within a 100-mile distance from the border of a designated 
reentry site, including a pre-planned contingency abort location, shall 
not exceed a risk level of .000001 casualties per mission, or 
Ec criterion of 1  x  10-\6\. The FAA included 
the additional criterion in the interest of limiting public risk 
exposure should a minor system failure cause an off-site, but not 
random, landing on Earth. A similar standard was applied to the COMET/
METEOR reentry vehicle proposal to ensure that risk exposure of the 
population within the vicinity of a landing site would not exceed 
normal background risk as a result of planned reentry.
    Eight entities commented in opposition to the proposed requirement 
that would impose additional restrictions upon reentry. Included among 
the objections were complaints that the criterion would not be feasible 
to satisfy, is not necessary or appropriate for guided RLVs or reentry 
vehicles, appears to place greater value on population near a reentry 
site than elsewhere, and imposes separate standards for launch and 
reentry when a single expected casualty criterion for the mission would 
suffice. Space Access offered, as an alternative, that the additional 
restriction on RLV reentry be applied only to unproven RLVs. ERPS 
suggested that designation of a 100-mile area is an arbitrary measure 
and that when applied in combination with population overflight 
criteria for an unproven vehicle that assumes an absolute probability 
of failure while the IIP is over a populated area, would disqualify the 
Shuttle from licensing assuming existing Shuttle landing strips are the 
designated reentry sites.
    The FAA has reconsidered the proposed requirement limiting 
collective risk to persons located within 100 miles of the border of a 
reentry site. As an alternative, the FAA considered acceptable risk 
measures utilized by Federal ranges to ensure that population within 
the vicinity of a Federal launch range are not exposed to unacceptable 
risk. Federal ranges apply an individual risk standard to address this 
safety concern. Under Air Force Eastern and Western Range Safety 
Requirements, EWR 127-1, the risk of a casualty to any individual 
cannot exceed one in a million launches, or Ec 1 
x  10 -6 for the mission. Individual risk is different than 
collective risk. Individual risk measures the risk to a single person 
in the exposed population, whereas collective risk measures the sum 
total risk, or the probability of injury or death, to that part of the 
public exposed to an event. An individual risk measure is utilized to 
address circumstances under which certain people may be exposed to 
risk, such as where a single dwelling exists along a vehicle 
trajectory. Application of an individual risk measure for persons 
residing within the dwelling would dictate whether or not it must be 
evacuated for launch or reentry activity along that trajectory to occur 
safely.
    Upon reconsideration of the additional safety requirement, the FAA 
has determined that application of the Air Force standard for 
individual risk, in combination with the final rule criterion for 
acceptable collective risk for the mission (Ec  
30  x  10 -6) accomplishes the regulatory objective of 
ensuring that persons in the vicinity of a reentry site or designated 
landing location for an RLV or reentry vehicle are not exposed to 
greater than normal background risk. Accordingly, Sec. 431.35(b)(2) is 
revised in the final rule by removing all reference to a 100-mile 
distance from the designated reentry site. In its place, the final rule 
limits individual risk of a casualty to 1  x  10-6 for any 
person not involved in the licensed activity.
    Section 431.35(c) requires that an applicant demonstrate acceptable 
risk using a system safety process to identify hazards and mitigate 
risks to public

[[Page 56638]]

health and safety and the safety of property. To be acceptable, the 
system safety process employed must identify and assess reasonable 
reasonably foreseeable hazardous events and failures of safety-critical 
systems during nominal and non-nominal launch and reentry that could 
result in a casualty to the public, that is, someone not involved in 
the mission. ACTA commented that the term safety-critical is 
potentially quite broad and should be limited to identifying those 
systems that have direct potential effects on public safety. The FAA 
agrees and has modified the regulatory definition of the term ``safety-
critical'' in the final rule. By referring to failures that could 
result in a casualty to the public, the FAA intends to refer to public 
safety-critical systems. FAA Advisory Circular, AC No. 431.35-2 , 
defines a safety-critical system as one whose performance or 
reliability can affect public health and safety and the safety of 
property.
    Other comments regarding use of a safety system process are 
discussed above under the discussion of the FAA's three-pronged 
strategy for RLV mission safety.
    Section 431.35(d) lists the requirements that must, at a minimum, 
be covered by an applicant's demonstration of acceptable risk using a 
system safety process. These include a description of physical 
characteristics of an RLV, identification of hazardous materials on the 
vehicle, a description of safety-critical systems and safety-critical 
failure modes and consequences, and a timeline identifying safety-
critical events. Section 431.35(d)(7) of the proposed regulations would 
require an applicant to provide data that validates its system safety 
analyses. USA commented that validation requirements and the methods 
and standards used for such validations should be defined by the FAA. 
To some extent, the data that would be used to validate a particular 
analysis is dependent upon the system safety process selected by an 
applicant and is therefore not dictated by regulations. FAA Advisory 
Circular, AC No. 431.35-2, provides additional guidance on the nature 
of the documentation that would be required. For example, it provides 
that documentation must show adequate design, proper assembly, and 
vehicle control during all flight phases, and is expected to consist of 
design information and drawings, analyses, test plans and reports, 
previous program experience, and quality assurance plans and records. 
As part of the licensing process, the FAA would consider the nature of 
the system safety process selected by an applicant, which in turn would 
determine the methods of validation and documentation that flow from 
the process. For this reason, the FAA does not define, in the final 
rule, particular methods and standards that must be utilized to 
validate system safety analyses.
    ERPS commented that the section-by-section analysis of the NPRM 
refers to empirical data for purposes of validating the required system 
safety analyses, which in turn would require a flight test program, 
according to ERPS. The regulatory text of the NPRM contains no 
reference to empirical data. However, the FAA would welcome empirical 
data if it exists, such as that acquired through ground testing of 
systems, but would not require a flight test program under the final 
rule. No change is made in the final rule on the basis of the ERPS 
comment.
    Section 431.35(d)(8) requires flight trajectory analyses covering 
launch or ascent and reentry or descent flight of an RLV through 
landing, including three-sigma dispersion of the vehicle along its 
trajectory. Comments addressing the three-sigma dispersion of an RLV 
are addressed above in the discussion of public comments addressing 
operational restrictions proposed for RLV mission licensing. The FAA 
further notes the value of trajectory dispersion modeling for purposes 
of analyzing the consequences on the ground or to aircraft in flight of 
vehicle failure. For this reason, the FAA anticipates that prospective 
RLV operators would perform the modeling contemplated by the final rule 
and include risk-producing events and consequences within the three-
sigma limits along a nominal flight trajectory to the designated 
reentry site or landing location and would likewise do so for any non-
nominal trajectories identified in advance of an RLV mission.

Section 431.37  Mission Readiness

    Section 431.37 specifies procedures for verifying mission readiness 
for the conduct of an RLV mission. Mission readiness procedures must be 
employed before initiating launch or ascent flight and before reentry 
or descent flight, as applicable. Procedures for determining readiness 
of safety operations personnel for the vehicle as well as personnel and 
services at the launch and reentry site must be covered. Procedures 
must also ensure that mission rules and abort procedures are 
consolidated in a single location and approved by the individual 
responsible for the conduct of the RLV mission, checklists maintained 
by the licensee and the launch and reentry site operator are current 
and consistent so that all involved participants share common 
understanding of the mission, dress rehearsals will verify crew 
readiness and readiness of other participants in the RLV mission and 
that criteria for dispensing with or adding dress rehearsals are 
specified, as well as adherence to crew rest rules.
    TGV expressed agreement with the intent of mission readiness 
requirements and procedures, as proposed; however, to relieve industry 
of the resulting burden TGV proposed that the FAA supply a designated 
engineering representative (DER) as a substitute for submission of 
procedures and reports. An on-site DER could also approve modifications 
to procedures and checklists without the need and the time required for 
formal submission of changes to the FAA, according to TGV. DERs have 
been used successfully by the FAA in aircraft certification.
    The FAA does not agree that use of a DER would relieve an applicant 
of paperwork and reporting burdens because the applicant, not the FAA, 
must develop the procedures by which it will determine and verify 
mission readiness. Although on-site approval authority is an appealing 
means of facilitating license application modifications, the FAA 
believes that experience in RLV operations should be gained by the FAA 
and industry before employing such concepts. That said, the FAA is 
considering the best means of identifying and applying processes that 
will facilitate licensing, including RLV mission and reentry licensing, 
and does not rule out future use of proven, successful concepts in 
doing so.
    Kelly and ASTi objected to continuing requirements for the conduct 
of dress rehearsals. Kelly expressed the view that rehearsals should 
only be required as a special circumstance, such as during a flight 
test phase or after a significant vehicle modification. ASTi commented 
that the requirement should be reduced to a recurring training 
requirement as a system matures. ERPS commented that the requirement to 
provide a basis for doing away with a dress rehearsal was intrusive and 
that a licensee should be allowed to rehearse every mission at its own 
election.
    Based upon experience, the FAA considers that dress rehearsals are 
valuable tools for identifying lack of individual or system readiness 
and therefore requires that mission readiness procedures cover them. 
However, dress rehearsals may not be necessary for all missions. The 
criteria by which an applicant proposes to dispense with a dress 
rehearsal must be identified as part of an application and reviewed by 
the FAA for sufficient consideration of potential effects on public 
safety, as part

[[Page 56639]]

of the FAA's safety review. Through this requirement, the FAA and 
applicant would share a common understanding of the number and 
complexity of dress rehearsals to be conducted in support of a 
particular mission and that understanding would become a stated 
condition of an RLV mission license. ERPS's concern is misplaced, 
however, in that the FAA would not object to the conduct of one or more 
dress rehearsals before every mission proposed by an applicant.

Section 431.39  Mission Rules, Procedures, Contingency Plans, and 
Checklists

    The FAA's experience in licensing and regulating ELV launches has 
demonstrated the importance to public safety of requiring that an 
applicant compile missions rules, procedures, checklists, and 
contingency plans, in a single volume, to ensure safe conduct of 
mission operations. Because RLV missions are comprised of launch or 
ascent flight and reentry or descent flight, additional personnel may 
be involved in a mission than those typically required for an ELV 
launch, such as a reentry site operator that is not necessarily the 
launch site operator for the mission. Accordingly, the requirement to 
assure consistency in and common understanding of such safety-critical 
elements as mission rules, procedures and checklists among involved 
participants for nominal and non-nominal flight takes on heightened 
importance from a public safety perspective. The FAA requires 
submission of such rules and plans to ensure a licensee's procedures 
are carried out as proposed in an application and reviewed and approved 
by the FAA as part of the safety review.
    USA expressed concern that such documents as mission rules and 
procedures would not be finalized at the time an RLV mission license 
application is submitted to the FAA. Given that material changes in an 
application must be reported to and approved by the FAA for a licensee 
to retain its authorization, USA requested clarification of what would 
constitute a material change in such submissions.
    The FAA recognizes that launch plans evolve during pre-application 
consultation, throughout the application review period, and after a 
license has been issued. As an applicant constructs its application, 
the FAA may require additional information pertaining to a data 
submission or the applicant may revise its vehicle or mission design 
and submit revised information. An analysis previously considered by 
the agency may require further refinement later in the review process 
if, for example, test results challenge assumptions that form the basis 
of the analysis. Ongoing consultation is necessary to build the 
complete application upon which the agency's licensing determination is 
based and it is therefore not unusual for an application to be finally 
deemed complete at the point at which the agency's review is nearly 
concluded. Throughout this process, the FAA is able to review and act 
upon proposed modifications promptly and efficiently as long as it has 
been kept informed and involved during the development of the final 
application.
    Once a license has been issued, the licensee has a continuing 
obligation to report proposed changes from representations contained in 
an application that are material, that is, that may affect public 
safety. For RLVs, the FAA expects that an applicant would make changes 
to mission rules and procedures and the like from that initially 
submitted as part of an RLV mission license application because its 
operational concept as well as mission hardware may undergo continuing 
modification until proven or mature. Mission rules, checklists and 
other plans and procedures identified in Sec. 431.39 are required under 
the final rule because of their potential effect on public safety. It 
is therefore reasonable for an applicant or licensee to anticipate that 
any change to such documents would be deemed a material change by the 
agency. The FAA encourages applicants and licensees to consult with the 
FAA to determine whether a proposed change may affect public safety and 
would therefore be considered a material change.

Section 431.41  Communications Plan

    Section 431.41of the final rule requires submission of a 
communications plan binding upon vehicle safety operations personnel 
during the conduct of an RLV mission. It must contain procedures for 
issuance of safety-critical information during the mission and describe 
the authority of vehicle safety operations personnel to issue commands. 
Personnel may be identified by name or position. The required 
communications plan resembles that currently required for licensed ELV 
launches in the following ways. Communication networks must be assigned 
such that safety operations personnel have direct access to real-time 
and safety-critical information required for making safety-related 
decisions during the mission and issuing commands. Safety-critical 
communications are monitored by vehicle safety operations personnel on 
one, pre-determined common intercom channel during launch and reentry 
including the countdown for launch and reentry flight. Also, a 
terminology protocol must be utilized. Safety-critical communications 
during the mission must be recorded.
    Boeing commented that the requirements for a communications plan 
proposed in the NPRM did not address interface with air traffic 
controllers. The final rule includes a provision for coordination with 
air traffic control regional offices but does so as a condition of an 
RLV mission license. Section 431.75(b)(2) of the final rule requires 
that the licensee and the FAA regional office with jurisdiction over 
the airspace through which a launch and reentry will take place 
establish procedures for issuance of notices to airmen prior to flight, 
closing of air routes and other measures deemed necessary by the FAA 
regional office.
    ERPS sought clarification as to whether communications plan 
requirements apply to an RLV while it operates on orbit. The 
requirements listed in Sec. 431.41 apply to licensed operation of an 
RLV and would apply to launch and reentry of the vehicle inclusive of 
pre-flight activities such as countdown or preparation for launch 
flight and countdown or reentry readiness operations before reentry 
flight. They would not apply to on-orbit operation of an RLV that is 
not part of launch or reentry.
    ERPS also sought clarification on the form of recording that would 
be acceptable to the FAA. The reason for recording communications is to 
have the ability to recreate or play back transmissions in the event of 
an anomalous circumstance requiring investigation or prevention 
analysis. The NPRM did not specify how that may be accomplished, or the 
format for doing so, as long as the intended purpose can be achieved. A 
single recording device may be used or an applicant may propose to use 
multiple devices or tracks with synchronized time signals. The FAA 
understands that it is common practice in the launch industry to rely 
upon several communications channels, each of which is dedicated to a 
particular subject area, and the FAA would find it acceptable practice 
to record channels separately as long as the timing and sequence of 
communications can be reconstructed. For example, where multiple 
channels are utilized, recording practices are adequate if individual 
channels are recorded separately and synchronized time coding is 
employed. Time coding and adherence to the communication

[[Page 56640]]

protocol would also be particularly important where a single recording 
is made of all communications on various channels. The final rule 
clarifies the requirement. Adequacy of an applicant's proposed method 
of assuring that safety-critical communications are recorded accurately 
and in a meaningful manner will be evaluated by the FAA as part of the 
safety review.
    NorthStar commented upon the need for communications system 
reliability and backup systems if needed. System reliability will be a 
factor considered by the FAA in evaluating the adequacy of an 
applicant's proposed method of recording communications to accomplish 
its intended purpose. However, where a communications system is 
integral to proper performance of a flight safety system and therefore 
safety-critical, reliability will be evaluated through hazard 
identification and risk assessment required under Sec. 431.35(c). Also, 
mission rules and procedures would address non-nominal performance of 
safety-critical systems and implementation of contingency plans.
    ASTi sought clarification of the reference in Sec. 431.41 to safety 
operations personnel because it suggests the responsibilities of a 
``pilot in command.'' ``Vehicle safety operations personnel'' is a 
defined term under Sec. 401.5. It means those persons whose job 
performance is critical to public health and safety or the safety of 
property during RLV or reentry operations. Therefore, it is not limited 
to a pilot or crew on board a vehicle although it may include them. 
Vehicle safety operations personnel would include persons monitoring, 
enabling and otherwise controlling vehicle performance during licensed 
activity from ground stations.

Section 431.43  Reusable Launch Vehicle Mission Operational 
Requirements and Restrictions

    Section 431.43 contains the operational restrictions imposed by the 
FAA on RLV mission flight. An applicant for an RLV mission license must 
submit procedures that ensure conformance by an RLV operator with those 
restrictions once a license has been issued. Upon issuance of a 
license, a licensee is responsible for conducting authorized RLV 
missions in accordance with procedures it submitted as part of the 
safety review.
    In addition to operational restrictions highlighted in the 
discussion of the FAA's three-pronged public safety strategy for RLV 
missions, Sec. 431.43 of the final rule requires a collision avoidance 
analysis to prevent contact with any inhabitable orbiting object during 
launch and reentry, such as the Shuttle or International Space Station. 
It also prescribes crew rest requirements which may be increasingly 
significant for RLV operators whose personnel may support multiple 
flight phases of a mission and long duration missions, unlike ELV 
launches. The work and rest standards adopted in the final rule are 
similar to those currently used at Federal launch ranges and imposed on 
commercial ELV launch operators by FAA regulation.
    Section 431.43(a) requires submission of procedures that ensure 
acceptable mission risk, as defined in Sec. 431.35, is not exceeded for 
nominal and non-nominal operations. The FAA does not prescribe design-
based standards for ensuring operations remain within the acceptable 
risk criteria. An applicant may design procedures best suited to its 
operational concept and technology for doing so. Operator procedures 
would be derived from the system safety process utilized by an 
applicant and, in particular, the hazard identification and risk 
analysis performed in accordance with Sec. 431.35(c) to address nominal 
and non-nominal operation and flight of an RLV. Under Sec. 431.43, an 
applicant must submit procedures that ensure conformity with system 
safety process results. Procedures must also ensure conformance with 
operational restrictions identified in Sec. 431.43, including collision 
avoidance analysis, debris mitigation, crew rest requirements, 
limitations on overflight of populated areas, monitoring safety-
critical systems for safe reentry and enabling of reentry.
    Section 431.43(a)(4) of the NPRM is revised in response to comments 
received concerning monitoring of safety-critical systems. The proposed 
requirement would compel procedures for monitoring and verifying the 
status of safety-critical systems immediately before and during 
missions operations.
    For some RLVs, it will not be practicable to monitor systems 
throughout licensed operation of an RLV. Some RLVs and reentry vehicles 
will confront black-out periods during reentry flight during which it 
will not be feasible to obtain telemetry data. For some orbital RLV 
concepts, the FAA envisions that telemetry would be available only at 
certain times or for certain orbital positions during an orbit. Design 
and performance factors for specific RLVs will necessarily determine 
which systems are safety-critical and can influence monitoring and 
verification procedures. The FAA modifies the proposed requirement in 
the final rule to more effectively accommodate individualized 
procedures. Nevertheless, procedures requiring monitoring and 
verification of safety-critical systems must ensure safe reentry and an 
applicant's procedures must therefore make provision for performing 
such public-safety related functions prior to enabling launch and again 
prior to enabling reentry flight of a vehicle.
    Section 431.43(a)(5) of the final rule retains the requirement 
proposed in the NPRM and reflected in draft interim safety guidance for 
RLV operators for human activation or initiation of a flight safety 
system that safely aborts an RLV launch if the vehicle is not operating 
as approved and acceptable risk standards for an RLV mission would be 
exceeded. A flight safety system is broadly defined in Sec. 401.5 of 
the final rule to mean a system designed to limit or restrict the 
hazards to public health and safety and the safety of property 
presented by a launch or reentry vehicle in flight through controlled 
ending to vehicle flight. It may be destructive, such as a flight 
termination system (FTS) traditionally employed on ELVs to terminate 
flight by breaking the vehicle apart, or nondestructive, such as an 
engine thrust termination system that enables intact landing.
    Vela disagreed with a statement in the supplementary information in 
the NPRM to the effect that the RLV industry has agreed that some type 
of flight safety system (FSS) would be necessary to satisfy Federal 
range safety requirements. Vela commented that an FTS would never be 
used on an RLV and believes that RLVs will launch from locations other 
than a Federal range. The FAA disagrees with Vela. The FAA reiterates 
that the regulatory requirement in issue is for use of an FSS that may 
or may not be destructive. Vela plans a passenger-bearing vehicle and, 
in all likelihood, would employ an FSS that allows for controlled 
landing in the event of an aborted launch. Other RLVs may employ 
multiple stages, including an expendable booster that may indeed rely 
upon a destructive FTS, much like the solid rocket boosters of the 
Shuttle.
    A number of comments were submitted addressing the proposed 
requirement for a ``human-in-the-loop'' and the FAA proposal to 
foreclose total dependence on a fully autonomous abort system. Kistler 
and ACTA objected that requiring a human-in-the-loop and disallowing 
autonomous systems would limit innovation and increase costs of 
development. Autonomous systems should be considered on an individual 
basis, they stated. Lockheed Martin pointed out that current ELV 
practice allows for autonomous control of some

[[Page 56641]]

critical activities, such as ignition of an upper stage. Comments 
offered by industry on the draft interim safety guidance for RLVs and 
in the COMSTAC report of the RLV working group varied on the degree of 
human control that should be required and whether human intervention 
may only be required during flight testing. Space America pointed out, 
in response to the draft interim safety guidance for RLVs, that human 
intervention does not necessarily decrease risk. Space Access also 
stated that human intervention is required but that qualifications 
should be better defined. Several RLV developers planning crewed 
vehicles suggested that a requirement for human intervention would be 
fulfilled by a pilot in command of the vehicle.
    In response to the comments, the FAA acknowledges that autonomous 
flight safety systems are technically feasible and has allowed total 
reliance on an autonomous FTS where risk to public safety is extremely 
low. In requiring human intervention capability for activation of an 
FSS the FAA does not intend to foreclose development or use of 
autonomous systems. The FAA also does not intend that autonomous 
decision-making would be foreclosed. However, the FAA does consider 
that total reliance on a fully autonomous system to assure RLV safety 
to the public is unwarranted until a greater level of confidence in 
such systems can be obtained and accordingly requires that capability 
exist for a person to intervene and make decisions for FSS activation. 
Two recent studies by the National Research Council Committee on Space 
Launch Range Safety and a Lockheed Martin technology demonstration for 
a new range safety system substantiate the technical feasibility of 
autonomous flight safety systems. However, concern remains within the 
government that the demonstration of such systems at the requisite 
level of confidence remains some time away. A 1999 failure of 
autonomous flight return and flight safety systems on a Perseus B drone 
aircraft illustrates the benefits of human intervention capability in 
the event an autonomous system does not perform as intended. When the 
autonomous flight return system and manually commanded FSS failed, 
having human control allowed the Perseus B's controllers to move the 
vehicle away from a densely populated area before total command was 
lost during the last few thousand feet of descent through landing on 
Interstate 40 in California. For such reasons, NASA and its industry 
partners involved in X-33 and X-34 technology demonstration programs 
use human-in-the-loop flight termination systems to ensure public 
safety, even though the vehicles are autonomous during nominal flight.
    The FAA supports the continued development of autonomous flight 
safety systems but does require, for the present, human intervention 
capability to assure public safety and in doing so makes no distinction 
in the final rule between test flights and operational flights. 
Autonomous navigation of RLVs combined with human intervention 
capability to verify safety-critical system status and override or 
redirect automated functions would be allowed under the final rule. No 
change is made in Sec. 431.43(a)(5) of the final rule from that 
proposed in the NPRM.
    Section 431.43(b) of the final rule imposes the requirement that an 
applicant for an RLV mission license identify nominal landing and 
vehicle staging impact or landing areas, if any. Also, if an applicant 
relies upon the ability to attain one or more contingency abort 
locations during launch or reentry in order to satisfy acceptable risk 
criteria of the final rule, they must be identified as part of the 
safety review process as well.
    For each location identified, the FAA would deem it suitable for 
purposes of launch or reentry safety if, in addition to any 
environmental consequences that must be assessed, the three-sigma 
dispersion of the vehicle or vehicle stage can be contained entirely 
within the designated location and it is sufficiently large as to 
contain landing impacts, including debris and toxic release. The 
applicant would also have to demonstrate to the FAA that a designated 
location is attainable by its vehicle. ACTA commented that based on X-
33 and other RLV designs, the availability of excess energy that would 
be needed to maneuver cross-range to attain a contingency abort 
location is usually limited making aborts on azimuth more likely. If 
that is so, an applicant could show capability to perform on-azimuth 
aborts through analyses, simulation or testing. Other contingency abort 
scenarios may include a return to the launch site, an abort to orbit 
although not the intended final orbit, and abort to an unpopulated 
downrange location, such as a broad ocean area. An applicant would 
therefore have to demonstrate that its vehicle can be maneuvered to a 
designated landing area given the set of three-sigma bounded 
trajectories for a proposed mission and under the failure modes for 
which that location would be utilized. Vehicle stages, including those 
that fail to ignite or that otherwise operate in non-nominal fashion, 
must also satisfy the three-sigma dispersion criterion contained in 
Sec. 431.43(b) upon impact or landing and the risks that attend staging 
impacts would be considered part of the mission assessed against 
acceptable mission risk criteria set forth in Sec. 431.35(b). Comments 
on size suitability of a landing location designated under 
Sec. 431.43(b) were addressed in the discussion of public comments on 
the FAA's three-pronged public safety strategy in RLV mission 
licensing.
    Draft interim safety guidance for RLVs issued by the FAA and made 
the subject of the February 11, 1999 public meeting included as a 
safety objective the notion that an RLV operator would necessarily 
designate pre-planned, pre-approved abort landing sites that avoid air 
traffic areas along the intended flight corridor for the vehicle during 
all flight phases. Industry voiced objections to the requirement based 
upon feasibility and cost of compliance particularly if each such site 
had to be evaluated for environmental impacts, and stressed that 
meeting the expected casualty criteria for acceptable risk to public 
safety should be sufficient. Careful consideration by the FAA of 
industry concerns resulted in the approach proposed in the NPRM and 
adopted in the final rule, requiring designation by an applicant of 
contingency abort locations only if it is necessary to do so in order 
to satisfy the acceptable risk criteria of the rule. Consistent with 
the NPRM, the final rule does not require designation of a contingency 
abort location for all missions or for all phases of a proposed 
mission; however, an applicant would have to show that an uncontrolled 
random reentry (e.g., due to orbital decay) will not exceed acceptable 
risk criteria for the mission. Except where reliance on a contingency 
abort location is necessary to demonstrate that acceptable risk 
criteria for the mission will not be exceeded, discretion is left to an 
applicant for an RLV mission license to determine whether to select, in 
advance of a mission, an alternative location within which to land a 
vehicle during ascent or descent flight.
    Orbital Sciences asked for clarification of the reference in 
Sec. 431.43(b) to a contingency abort location and whether it would be 
regulated as a reentry site. The final rule defines a contingency abort 
to mean cessation of vehicle flight during ascent or descent, in a 
manner that does not jeopardize public health and safety and the safety 
of property, in accordance with mission rules and procedures. Cessation 
of vehicle flight may be done

[[Page 56642]]

through destructive or non-destructive means. The definition further 
provides that contingency abort includes landing at an alternative 
location that has been designated as a contingency abort location in 
advance of vehicle flight. A contingency abort location may be a 
reentry site operated by a non-Federal entity under an FAA license or a 
location for which an RLV operator is allowed access, by agreement with 
the owner, as long as its suitability for use by an applicant is 
evaluated as part of RLV mission licensing. A contingency abort is not 
limited to reentry and may occur during any flight phase of an RLV 
mission. A pre-selected contingency abort location would be evaluated 
as part of the environmental review required for a proposed mission, as 
explained in the discussion pertaining to Sec. 431.93 of the final 
rule.
    Similarly, Space Access commented on the need to differentiate 
between a reentry site and a landing site. Although commenters may 
refer to a landing site in commenting upon the location at which a 
reentry vehicle may land, this final rule uses the term ``reentry 
site'' as defined in Sec. 401.5.
    Vela also asked for clarification of what is meant by a landing 
site asking, hypothetically, whether it would be all area within the 
restricted boundary of Los Angeles International Airport. The 
designated location for landing an RLV, whether it be a reentry site or 
designated contingency abort location, would cover all restricted area 
within which the three-sigma dispersion of a vehicle may occur for 
purposes of assessing size suitability. Where, for example, debris or 
toxic fumes may be dispersed upon landing, an applicant would also have 
to show that the restricted area is sufficiently large and removed from 
public access as to contain the three-sigma dispersion area for the 
vehicle at all landing points. To accomplish this result at an airport, 
an applicant may demonstrate that its vehicle can land on a designated 
runway with the required level of predictability and that the 
restricted area of the airport is sufficiently large as to contain the 
vehicle and any toxic emissions within its boundary should the vehicle 
touch down at any point within the three-sigma dispersion area of the 
vehicle.
    Section 431.43(c)(1) requires a collision avoidance analysis to 
assure a 200-kilometer separation of an RLV from any inhabitable 
orbiting object during launch and reentry and defines launch window 
closure requirements. Some questions were raised in the comments as to 
who would perform the analysis and how it would be performed. Timing of 
the analysis was also raised in the comments to address dynamic 
scheduling demands of RLV launches and reentries.
    The FAA maintains a memorandum of agreement with U.S. Space Command 
to facilitate the conduct of collision avoidance analyses required for 
launch activities. Currently, only ELV launches require a collision 
avoidance analysis which can generally be performed in advance of a 
launch based upon a stable, scheduled date or dates for launch. The FAA 
understands that for RLVs, there is greater uncertainty in scheduling a 
reentry event because of the potential need to complete additional 
orbits before reentry readiness is confirmed. Yet, just as aircraft 
file a flight plan to operate in the National Airspace System and avoid 
collision with other aircraft, RLV reentries must be coordinated to 
assure no collision occurs on orbit with inhabited orbiting objects. 
The FAA is engaged in discussions with U.S. Space Command on how best 
to accomplish collision avoidance analyses and has specified in this 
and other regulations only that it be performed, without designating 
the point of contact for an applicant. The collision avoidance 
requirement is included in this final rule to alert RLV operators to 
the need for such an analysis for every launch and reentry. Means of 
complying with the collision avoidance requirement may be supplied in 
advisory material prepared by the agency or through future rulemaking.
    Lockheed Martin noted in its comments that it intends to address 
space station servicing as part of its commercial launch services 
market and may require the ability to do so on a first orbit, contrary 
to rule restrictions. Lockheed Martin recommends adding an exception to 
this final rule to address circumstances in which the inhabited 
orbiting object is the intended destination for a launch. A docking 
maneuver would not be considered licensed activity under this final 
rule. Although the requirement for a collision avoidance analysis is 
directed at avoiding such contact during licensed launch and reentry 
operations, the FAA declines to adopt Lockheed Martin's recommendation 
for the time being preferring instead to consider granting a waiver to 
the restriction on an individual basis to assure that safety 
considerations are not compromised.
    Section 431.43(c)(2) prohibits, for any RLV, substantial dwell time 
by its IIP over densely populated area during any segment of mission 
flight. Comments directed at this restriction were addressed in the 
discussion of public comment on the FAA's three-pronged public safety 
strategy for RLV missions and the interested public is referred to that 
discussion.
    A requirement to minimize debris generation in the space 
environment has been part of FAA launch licensing regulations for the 
past year. Despite a comment from Kelly that the rule is too directive, 
the final rule imposes a comparable requirement on RLV missions to 
ensure that debris risks are mitigated. Debris propagation would 
interfere with other RLV missions, as well as ELV launches and 
satellite operations in space. To minimize that possibility, 
Sec. 431.43(c)(3) prohibits unplanned physical contact between a 
vehicle and its components and payload after payload separation. The 
final rule also prohibits debris generation from conversion of energy 
sources into energy that would fragment the vehicle or its payload. ELV 
operators are capable of complying with this requirement and the FAA 
finds it prudent to extend it to RLV operators as well, although RLV 
operators may utilize means other than those typically applied to ELVs 
to comply with the requirement. The final rule alerts prospective RLV 
operators to the debris mitigation requirement sufficiently early in 
RLV design and mission planning as to minimize any burden of compliance 
with its terms.
    The crew rest requirements presented in Sec. 431.43(c)(4) of the 
NPRM prompted two comments. B-G stated that it would not object to 
applying the proposed requirements to the crew on a piloted vehicle if 
it were made clear that the rest required could take place aboard the 
vehicle. The FAA intends the crew rest requirements proposed in the 
NPRM to apply to all vehicle safety operations personnel wherever 
located and does not specify in the final rule where required rest must 
take place. The FAA concurs with B-G's observation that rest may take 
place while on board a vehicle. ASTi suggested using aircraft crew rest 
requirements for ground and flight crew. Crew rest requirements 
contained in the rule are similar to those imposed by the Air Force for 
Federal launch ranges and have proven effective in accomplishing their 
public safety objective. Accordingly, the FAA adopts those requirements 
for RLV operations in the interest of public safety preservation. As 
already noted, the FAA will separately consider additional human 
factors for crewed and passenger-bearing vehicles in a future 
rulemaking.
    Section 431.43(d) provides population overflight restrictions 
applicable only to

[[Page 56643]]

unproven vehicles.\8\ In an October 8, 1998 letter from AST's Associate 
Administrator to the COMSTAC, the FAA requested input from the RLV 
working group on, among other things, criteria for defining the types 
of test flight programs required to allow over-flight of populated 
areas by RLVs during launch and landing and criteria for transitioning 
from a flight test program to an operational program. Subsequently, the 
FAA issued draft interim safety guidance for RLVs and convened a public 
meeting to address safety objectives that included avoidance of 
overflight of densely populated areas and a test flight demonstration 
program demonstrating abort and recovery capability before allowing 
substantial overflight of populated areas.
---------------------------------------------------------------------------

    \8\ Comments on these restrictions are addressed above in the 
analysis of public comment on the agency's three-pronged public 
safety strategy for RLV missions.
---------------------------------------------------------------------------

    Intended as a starting point for development of an RLV licensing 
process between government and industry, the April 29, 1999 ``Draft 
Final Report on RLV Licensing Approaches'' (COMSTAC report) adopted by 
the COMSTAC at its May 1999 meeting reflects some working group areas 
of consensus; however, additional views expressed by individual working 
group members were included in the report. With regard to a test flight 
program, the COMSTAC report defined a test flight, supported RLV 
mission licensing involving overflight of a populated area following 
successful completion of a flight test program and demonstration of 
acceptable risk in accordance with a licensing plan, and would allow 
multiple flights comprising a flight test program under a single 
license. The COMSTAC report also reflects the RLV working group view 
that a system may be declared operational after successful completion 
of its flight test program in accordance with the licensing plan and 
that prudent exploration of the design envelope ultimately yields a 
fully operational system approved for flight in all regions of its 
design envelope. The COMSTAC report is included in the docket for this 
rulemaking.
    Objections voiced by RLV developers at the February 1999 public 
meeting regarding requirements for flight testing prompted the FAA to 
exclude from proposed regulatory requirements the need to conduct a 
flight test or demonstration program before commencing operational 
missions. Supplementary information accompanying the NPRM explains that 
the FAA considered but discarded the requirement for a flight test 
regime, a distinct change from the approach considered in draft interim 
safety guidance. However, the NPRM distinguishes between flight 
restrictions for ``unproven'' RLVs and all RLVs. Among other things, an 
``unproven'' RLV would not be allowed to fly over a densely populated 
area.
    The term ``proven'' does not appear in the regulatory text. The 
agency explained that it was not proposing criteria, such as the number 
of flights required, to determine the point at which a vehicle 
transitions from ``unproven'' to ``proven'' noting that the point of 
demarcation may depend upon unique characteristics of a vehicle. In the 
NPRM, the FAA explained that flight data would be necessary in order to 
validate an operator's risk analysis and show that the vehicle 
performed as assumed in the risk analysis. The FAA further explained 
that the number of flights necessary to validate a vehicle's risk 
analysis would depend, at least in part, on the severity of risks to 
public safety posed by the nature of operations the vehicle would be 
expected to perform under an applicant's proposal. The example cited in 
the NPRM addressed reliance upon abort capability as a basis upon which 
the FAA would allow flight by a ``proven'' vehicle over a populated 
area. Because the consequences of failure would, in all likelihood, 
violate acceptable risk criteria for the mission, the applicant would 
be required to demonstrate a sufficiently low probability of failure to 
satisfy the criteria. It should be noted, however, that the final rule 
does not require demonstration of abort and recovery maneuvers.
    An operator may find it desirable to conduct a flight test program, 
to gain confidence in system performance and reliability that may not 
be attainable through ground testing and simulations. Even those 
operators and RLV developers whose designs include subsystems and 
components for which there exists some performance data may determine 
that it is useful to perform test flights in order to gain data 
regarding use of components in a new flight environment or in 
combination.
    The FAA requested views on appropriate means of validating new 
vehicle performance and criteria for determining the point at which a 
vehicle may be considered ``proven.'' Unfortunately, no specific 
criteria were offered in the docketed comments to assist the FAA in 
differentiating a ``proven'' RLV from an ``unproven'' one. Instead, 
industry comments focused upon the difficulty of satisfying the 
operational restrictions proposed for RLV flight over populated areas. 
Several suggested that satisfying acceptable risk criteria for an RLV 
mission should be sufficient. Others suggested using FAA regulations 
covering experimental aircraft as the basis upon which flight tests may 
be authorized, that is, without reference to expected casualty 
criteria.
    The FAA continues to maintain that it is inappropriate to draw a 
bright line between ``unproven'' and ``proven'' RLVs for purposes of 
defining operating restrictions. Without flight data, the FAA does not 
believe that sufficient confidence can be placed in the results of risk 
analyses to warrant exclusive reliance upon an analytical demonstration 
of acceptable risk criteria or a system safety assessment. The FAA 
retains flexibility in the final rule to evaluate RLV concepts on an 
individual basis and consider flight data submitted by an applicant to 
validate risk analyses performed as part of the system safety process 
required under the regulations. Moreover, proven performance within an 
approved flight envelope would not signify that an RLV is ``proven'' 
for all flight purposes. Modifications in design and expansion of the 
performance envelope for successive RLV missions must be considered by 
the FAA in issuing a safety approval and possibly relieving operational 
restrictions.
    The FAA maintains restrictions on ``unproven'' RLVs as distinct 
from all other RLVs in the final rule. The FAA does so with the 
understanding that there currently exists no commercial RLV eligible 
for ``proven'' status because commercial RLVs have yet to be tested, 
much less operated. The agency anticipates that future rulemaking may 
modify these distinct requirements as RLV concepts become operational. 
In the near-term, the FAA would evaluate, on an individual basis, 
whether an RLV's performance is sufficiently reliable to allow flight 
over a densely populated area because risk to public safety is 
sufficiently remote.
    Although a flight test program is not required in the final rules, 
an applicant may utilize a flight test program as part of its proposed 
plan of operation and, through consultation with the FAA, obtain safety 
approval to operate within, or up to, a specified performance limit and 
also to make adjustments in non-safety-critical vehicle systems without 
requiring advance approval from the FAA beyond that already granted by 
the license. Adjustments that do not affect public safety or the safety 
of property would not require amendment of an application or of a 
license. A more complete discussion of matters requiring more 
formalized FAA approval appears in the discussion of

[[Page 56644]]

Sec. 431.73--``Continuing accuracy of license application; application 
for modification of license.'' Further demonstrations of performance 
and validating data would contribute to the basis upon which the FAA 
may approve increases in the approved flight envelope for successive 
missions.
    Comments regarding restricted population overflight by RLVs are 
addressed in the discussion of the agency's three-pronged public safety 
strategy for RLV missions.
    For RLVs that reenter from Earth orbit, Sec. 431.43(e) of the final 
rule directs that for reentry to occur, the operator or licensee must 
be able to monitor the status of safety-critical systems before 
enabling reentry flight and thereby verify that the vehicle can reenter 
safely and issue a command to enable reentry. Comments regarding 
monitoring requirements and human intervention to enable reentry are 
also addressed above as part of the operational restrictions on RLVs 
that the FAA imposes to assure RLV mission safety to the public. As 
noted above, it may not be necessary to monitor safety-critical systems 
immediately before reentry flight commences in order to assure reentry 
safety. Verification of vehicle status and position one or more orbits 
before reentry flight is planned may be sufficient to assure safe 
reentry. Accordingly, the FAA modifies this section of the final rule 
by removing the word ``immediately'' from the requirement in 
Sec. 431.43(e)(1) of the final rule and has made nonsubstantive changes 
for clarity.

Section 431.45  Mishap Investigation Plan and Emergency Response Plan

    Section 431.45 requires submission of a mishap investigation plan 
(MIP) that satisfies reporting requirements and provides procedures for 
cooperating with an FAA and National Transportation Safety Board (NTSB) 
investigation, and an emergency response plan (ERP) for notification of 
local officials and information dissemination to the public. As crafted 
in the NPRM, launch-related information for a MIP covering an RLV 
mission was outlined in Sec. 415.41 of the FAA Licensing Regulations, 
14 CFR 415.41, and an applicant was referred to that section for 
additional requirements in preparing a sufficient MIP. In this manner, 
the MIP would include the accident investigation plan applicable to 
launches under 14 CFR part 415 and additional requirements addressing 
accidents, incidents or other unplanned events during the reentry 
portion of an RLV mission. Upon reconsideration, the FAA has determined 
to include stand-alone accident, incident and mishap investigation 
requirements covering all phases of an RLV mission and to remove 
reference to part 415 from its requirements. References to part 415 
that appeared in proposed Sec. 431.45 are removed from Sec. 431.45 in 
the final rule and the data requirements for purposes of immediate 
notification and submission of a written preliminary report to the FAA 
are listed in Sec. 431.45. Additional modifications have been made for 
the purpose of ensuring consistency in notification and reporting 
requirements for ELV and RLV mishaps.
    NorthStar requested clarification of the term ``immediate'' for 
purposes of accident notification and requested that a time interval, 
such as one hour, be specified. Due to the severe nature of an 
accident, the FAA requires notification as soon as an event occurs, not 
within an hour or more. Therefore, the FAA will not include a time 
interval in the final rule. The FAA understands that immediate 
notification will not include all of the relevant details. More 
detailed information would be provided in the follow-up preliminary 
written report required within 5 days of the event. ERPS expressed 
concern over the requirement imposed upon the MIP that it provide for 
immediate notification that includes potential consequences for other 
vehicles or systems of similar type and proposed operations. ERPS 
states that this information would not be available until research and 
analysis is performed. The FAA agrees and notes that this requirement 
is now an element of the written report. ERPS further suggests that the 
written preliminary report identify the cause of the mishap. The FAA 
disagrees because accurate information concerning the cause of a mishap 
will not necessarily be available until an investigation is conducted. 
Identification of the cause of a mishap is an investigation report 
requirement under Sec. 431.45 of the final rule.

Section 431.47  Denial of Safety Approval

    Section 431.47 of the final rule provides that the FAA notifies an 
applicant in writing if safety approval is denied and provides the 
reasons for the denial. Safety considerations addressed through 
performance-based criteria included in the final rule may nevertheless 
result in denial of safety approval where the FAA determines that a 
proposed mission would jeopardize public health and safety and the 
safety of property even though an applicant has addressed the elements 
required for safety review in its application. The applicant can 
respond and correct any deficiencies identified by the FAA and request 
reconsideration. An applicant is notified directly by the FAA.
    The Aircraft Owners and Pilots Association (AOPA) expressed concern 
that others affected by issuance of an RLV mission license, such as 
users of the National Airspace System, should have an opportunity to 
voice concerns over issuance of the approvals leading to a license. The 
FAA does not envision an open licensing process that would allow 
competing concerns to prevent issuance of a license. Rather, the FAA is 
designing a concept of operations for use of the national airspace 
system to ensure that all users can be accommodated safely and without 
unreasonable disruption.
    Kelly and ERPS inquired as to the timing of a denial of safety 
approval. The FAA envisions that individualized aspects of the safety 
review process would require feedback, on an ongoing basis, from the 
FAA to an applicant as additional data needs are identified. 
Impediments to issuance of a safety approval would result from either 
deficient information, which would be identified to an applicant in the 
course of the FAA's review, or inability by an applicant to satisfy 
safety criteria outlined in subpart C of the final rule, part 431. The 
FAA would not withhold its conclusion if it determines that a proposed 
mission cannot be approved for safety reasons, but would provide such 
indications to an applicant who could modify its proposal to satisfy 
safety criteria. By statute, the FAA is committed to a 180-day review 
period for review of an accepted application and is also statutorily 
bound to notify an applicant not later than 120 days after receiving an 
accepted application of any pending issue. The combination of statutory 
deadlines, pre-application consultation to facilitate preparation of an 
acceptable application, and FAA commitment to an interactive and 
consultative licensing program should relieve any concern among 
applicants that the FAA would delay in making the determinations 
required for an RLV mission license.

Subpart D--Payload Reentry Review and Determination

    Reentry of a payload may present policy and safety issues different 
from those presented when a payload is launched. Accordingly, a 
determination separate from a payload determination is required to 
reenter a payload, whether it is one that was reviewed for launch or an 
object retrieved from space for return to Earth.

[[Page 56645]]

    ERPS did not object to the requirement for a payload reentry 
determination but questioned where responsibility lies for obtaining 
one. An owner or operator of the payload proposed for reentry may 
request the determination in place of an RLV operator; however, an RLV 
mission or licensee desiring to reenter a payload on its vehicle must 
ensure that a favorable determination has been made by the FAA. 
Accordingly, it is ultimately the responsibility of an RLV mission 
licensee to ensure that a payload reentry determination has been 
requested, if necessary, and that a favorable determination is made 
before proceeding with the mission.

Section 431.51  General

    Section 431.51 states the requirement for a payload reentry review 
and determination. It may be requested as part of, or separate from, an 
RLV mission license application review but must be completed favorably 
for a payload to be reentered to Earth.

Section 431.53  Classes of Payloads

    In the interest of facilitating RLV mission licensing, payloads 
sharing common characteristics may be reviewed as a general class and 
determined appropriate for reentry. Unique characteristics of payloads 
within the class, such as hazardous materials contained within the 
payload, may subject a particular payload to individual review. Because 
a payload reentry determination may be issued far in advance of an RLV 
mission, current information regarding each payload to be reentered 
must be reported to the FAA at least 60 days before a scheduled RLV 
mission involving the payload. The FAA can then ensure that a payload 
approved generally as part of a class does not pose unique hazards or 
policy considerations that must be separately addressed.
    TGV considers that 60 days notification should be replaced with 24 
hours, particularly for payloads similar to those previously launched 
and reentered, to facilitate rapid response time by an RLV operator. 
The FAA extends to RLV missions the existing 60-day notification period 
applicable to ELV-launched payloads for the time being but notes that 
only updated information not previously reported to the FAA and 
reviewed as part of the payload reentry review would require 
submission. An applicant for a payload reentry determination would be 
well-served to anticipate the types of payloads and their contents that 
it envisions reentering.

Section 431.55  Payload Reentry Review

    Other Federal agencies are consulted in performance of a payload 
reentry review, as is done in the payload review process, to determine 
whether reentry of a proposed payload poses any issues that would 
adversely affect U.S. national security or foreign policy interests or 
would jeopardize public health and safety or the safety of property. As 
in a payload review, as well as other reviews required for an RLV 
mission license, the FAA informs the applicant in writing of 
impediments to issuance of a favorable determination, allowing the 
applicant an opportunity to respond or revise its application. Kelly, 
ERPS and NorthStar expressed the same concerns over timing issues 
already addressed as part of the policy and safety review process 
outlined above. The agency response is the same as previously stated 
with regard to such concerns.
    ASTi inquired as to whether a payload that is launched and 
subsequently reenters without leaving an RLV requires a payload reentry 
review. The agency does require a favorable determination for a payload 
to be launched and subsequently reentered, whether or not it is first 
deployed from the vehicle and then reentered aboard the same or other 
RLV. Changes in payload characteristics must be evaluated to ensure 
reentry is appropriate. Moreover, a payload that is not hazardous or 
problematic in terms of U.S. policy for launch purposes may pose 
concerns to public safety or the U.S. Government upon reentry. 
Accordingly, a prudent RLV or payload operator may seek a payload 
reentry determination if there is a possibility that a payload, once 
launched on an RLV, cannot be deployed and would remain on-board the 
vehicle for reentry.

Section 431.57  Information Requirements for Payload Reentry Review

    Specific information requirements for a payload reentry 
determination are listed in this section of the final rule. NorthStar 
suggests that a means of assuring confidentiality of proprietary 
information be provided. As specified in 14 CFR 413.9, any person 
furnishing information or data to the FAA may request, in writing, that 
its trade secret or proprietary commercial or financial data be treated 
in a confidential manner.

Section 431.59  Issuance of Payload Reentry Determination

    Section 431.59 provides the bases upon which the FAA issues a 
favorable payload reentry determination. If an unfavorable 
determination is issued, the applicant is notified by the FAA in 
writing, and has an opportunity to respond to the reasons for denial 
and request reconsideration. In response to a request from ERPS for 
clarification, the FAA states that a person denied a favorable payload 
reentry determination may respond and request reconsideration 
immediately upon obtaining written notice from the FAA or may wish to 
do so at a future time.

Section 431.61  Incorporation of Payload Reentry Determination in 
License Application

    As previously stated, a favorable payload reentry determination is 
required for an RLV mission that includes a reentering payload. If 
information on which a favorable determination is based changes before 
the conduct of an RLV mission, the FAA must be provided with updated 
data and may perform an additional review including coordination with 
other Federal agencies. The FAA would do so if changed information 
signals possible effects on the FAA's safety mandate or on U.S. 
Government interests safeguarded through the licensing process. These 
requirements are consistent with current practice with respect to 
payloads proposed for launch on ELVs. Section 431.61 of this final rule 
extends this practice to RLV missions.
    ERPS commented that the responsibility for complying with 
Sec. 431.61 requirements should be imposed upon the payload owner or 
operator and not the RLV mission licensee. The FAA disagrees with ERPS. 
The privilege granted to a licensee by an RLV mission license is 
conditioned upon the FAA having current information that is material to 
public health and safety and safeguarding U.S. national security and 
foreign policy interests. Because the FAA does not license payloads or 
their owners and operators, the RLV mission licensee is in the best 
position to ensure that its customer, the payload owner or operator, 
reports changes in information to the licensee and to the FAA. By doing 
so, the licensee can feel confident that it is in compliance with the 
license. This responsibility is properly assigned by the final rule to 
the RLV mission licensee.

Section 431.71  Public Safety Responsibility

    Consistent with current practice for ELV launch licenses, 
Sec. 431.71 of the final rule states the basic principle that a 
licensee is responsible for ensuring

[[Page 56646]]

safe conduct of licensed activities. A license is issued on the basis 
of representations contained in an application that have been reviewed 
and approved by the FAA. Accordingly, a licensee is responsible for 
ensuring that it operates in a manner that is consistent with its 
application. Any deviation from the application would be a basis for 
revocation of the license or other enforcement action by the FAA 
against a licensee.

Section 431.73  Continuing Accuracy of License Application; Application 
for Modification of License

    Section 431.73 applies to a licensed RLV mission, the FAA's 
regulatory program for requiring approval of any changes in licensed 
activity from that reviewed by the FAA and authorized by a license. A 
licensee is therefore responsible for ensuring that representations 
contained in its application remain accurate for the life of the 
license. Any proposed change in operation that may affect public health 
and safety or the safety of property is subject to prior approval by 
the FAA. Section 431.73(b)(2) lists elements of an application that, if 
altered or affected by the change, would constitute a change in the 
accuracy of the license application. An application to amend or modify 
a license must comply with 14 CFR part 413 requirements applicable to 
preparation and submission of an application. The FAA does not re-open 
findings that are not affected by a proposed change and limits its 
review to those determinations affected.
    Kelly commented that a time limit should be imposed upon FAA 
license modification reviews and that a fast track approach should be 
used for issue resolution. The FAA has not specified in regulations the 
amount of time within which it would approve an application to amend a 
license. A proposed modification may affect approvals already granted 
in a significant way, essentially requiring that they be performed 
anew, such as where an RLV safety-critical system or mission proposal 
would change significantly. In such cases, the FAA may treat the 
application for modification as a new license application and commence 
the 180-day review clock. Minor changes would require far less time. 
This variability prevents the FAA from imposing upon itself strict time 
limits, other than those dictated by statute, for reviewing a proposal 
for modification of a license. The FAA does agree with Kelly, however, 
that issues posed by a proposed modification should be identified as 
quickly as practicable to facilitate their resolution and to this end 
seeks support from the proponent of the modification. With this in 
mind, Sec. 431.73(c) requires that the licensee seeking modification of 
its license identify those parts of its license or its application that 
would be changed or affected by a proposed modification.
    USA and ERPS requested clarification of FAA policy on what 
constitutes a material change requiring reporting to the FAA and 
request for license modification. ERPS is concerned that too strict a 
requirement would have a chilling effect on willingness of license 
applicants to disclose fully technical information in an application. 
ERPS would like the FAA to designate those designs, operations and the 
like that must be ``frozen'' in order to remain in compliance with a 
license. Otherwise, according to ERPS, a development program would be 
hindered by the need to continuously submit license modification 
applications to the FAA.
    In response to USA and ERPS, FAA believes that a change is material 
if it could affect fulfillment of the FAA's safety mandate, that is, if 
it could affect public health and safety or the safety of property. The 
final rule designates procedures, hardware, systems and plans that, if 
changed, could affect public safety. The final rule does so in the 
interest of providing notice to RLV mission licensees of particular 
aspects of an RLV mission application that must be maintained under 
current FAA approval for the license to remain valid. Minor 
modification to the list that appears in Sec. 431.73(b)(2) is made in 
the final rule to track more closely the required components of a 
license application.

Section 431.75  Agreements

    For reasons explained in the NPRM, an RLV mission licensee must 
enter into a variety of agreements, including an agreement for use of 
property and services of a Federal launch range, if applicable, or an 
agreement with a licensed site operator. If launch and reentry will 
occur at separate sites then agreements with each site operator would 
be required. The FAA expects that licensed operators of launch and 
reentry sites will impose safety requirements on their customers, 
including RLV mission licensees, that would cover activities other than 
launch and reentry at the site. Adherence to such safety requirements 
is also a requirement under the RLV mission licensing rules.
    Where a licensed site is used to support launch or reentry for an 
RLV mission, Sec. 431.75(b) of the final rule requires an agreement 
between an RLV mission licensee and the U.S. Coast Guard for issuance 
of Notice to Mariners before a launch or reentry unless the licensed 
site operator already has arrangements in place under the terms of an 
agreement with the U.S. Coast Guard. A similar agreement is also 
required between an RLV mission licensee and the regional FAA office 
for issuance of Notice to Airmen and for closing of air routes during 
launch and reentry windows, unless the licensed site operator maintains 
a comparable agreement. An RLV mission licensee also bears 
responsibility for such agreements when it uses a private site or has 
exclusive use of a site that is not a Federal launch range. Where 
launch or reentry takes place at a Federal launch range, the Federal 
range authority coordinates the Notices with the U.S. Coast Guard and 
FAA regional offices, respectively, so the requirement would not be 
imposed on the RLV mission licensee.
    ACTA commented that closing of air routes anywhere under the flight 
path of an RLV may be too restrictive. ACTA states that Federal launch 
ranges close airways only if the hazard area includes any part of an 
airway or the vehicle or any of its jettisoned stages and debris would 
penetrate an airway at an altitude below 100,000 feet. Instead of a 
change in the final rule, the FAA prefers to resolve air route closing 
issues, including those presented by potential use of contingency abort 
locations, as part of the concept of operations it is developing for 
use of the National Airspace System and on an individual basis as part 
of the FAA's safety review of a proposed mission. The FAA also reserves 
discretion within the FAA regional office to impose measures deemed 
necessary by that office to protect public safety. The need to clear 
airspace over a contingency abort location may depend upon a number of 
factors, such as the likelihood of using that location, air traffic 
density around it, and the time required to coordinate and clear 
airspace should a contingency abort be implemented. The FAA makes no 
change to the final rule requirement regarding agreements for notices 
to mariners and airmen.

Section 431.77  Records

    Section 431.77 extends record retention requirements imposed on ELV 
launch licensees to RLV mission licensees. The FAA does not accept the 
recommendation offered by TGV to change the record retention 
requirement from three years to one year. In the event of an accident 
or incident in the course of an RLV mission, a licensee is required to 
preserve relevant records until completion of any Federal

[[Page 56647]]

investigation and the licensee is advised by the FAA that the records 
need not be maintained any longer. ERPS questions why records must be 
maintained in perpetuity if they can be made available to the FAA. The 
FAA does not require perpetual record retention and does not intend to 
be the custodial record retention office for private industry. The FAA 
would share a licensee's interest in prompt, efficient resolution of an 
investigation and would require that records be maintained in the 
interest of developing accurate and comprehensive investigation 
findings. The FAA does not envision that this requirement would be 
unduly burdensome to industry.

Section 431.79  Reusable Launch Vehicle Mission Reporting Requirements

    The FAA requested public comment on proposed reporting requirements 
contained in the NPRM in light of rapid turnaround missions 
contemplated for RLV operations. The NPRM proposed 60-day and 15-day 
reporting requirements in advance of an RLV mission, in addition to 
mishap reporting consistent with the MIP and ERP submitted as part of a 
license application under 14 CFR 431.45. Lockheed Martin, ERPS and TGV 
recommended a 24-hour advance reporting requirement for an RLV mission 
for notifying the FAA of the time and date of intended launch and 
reentry of an RLV. TGV also suggested 7 days advance reporting for a 
new type of payload and 24 hours for a payload type previously 
launched. Vela argued that 60 minutes advance reporting is no more 
realistic for an RLV than it would be for an aircraft and was echoed by 
ASTi in suggesting use of an aircraft model and filing of a flight plan 
in lieu of reporting. The X PRIZE Foundation and B-G suggested using 
notice periods comparable to those used for issuance of notices to 
airmen and notices to mariners. Kelly suggested a provision be added 
for quick turnaround missions, perhaps 3-7 days in lieu of 15.
    Mission reporting requirements as proposed in the NPRM provide a 
minimum of 60 days notice to the FAA of a planned mission to facilitate 
FAA scheduling and final checks on license status. Collision avoidance 
analysis must be completed and inspector schedules arranged to 
accommodate mission scheduling. As time draws closer to an actual 
mission, the FAA seeks 15 days notice of mission plans assuming a 
licensee is then actively pursuing a launch campaign to meet its 
intended mission date. The 15-day notice is provided to U.S. Space 
Command to facilitate its collision avoidance analysis and tracking 
efforts. For ELV launches, in particular, comparable requirements have 
been extremely useful for the FAA and have not proven burdensome or 
problematic for licensees. For purposes of facilitating FAA planning 
and scheduling and to ensure the FAA can support a licensed RLV mission 
as part of its launch manifest, the FAA retains the 60-day minimum 
reporting requirement in the final rule. The FAA also retains the 15-
day requirement. As RLV operation matures and if practical experience 
so indicates, the FAA will consider modification of these requirements 
in the future, particularly when necessary to facilitate rapid 
turnaround missions.
    Comments also requested clarification of procedures and paperwork 
required to fulfill reporting requirements. Information that must be 
reported at least 60 days in advance of a mission is not restricted to 
a particular format. For 15-day notification of ELV launches, the FAA 
utilizes the FAA/U.S. Space Command Launch Notification Form located at 
14 CFR part 415, Appendix A. A licensee may use this form to provide 
the required information.

Section 431.81  Financial Responsibility Requirements

    A companion rulemaking details requirements for demonstration of 
compliance by an RLV mission licensee with financial responsibility 
requirements for reentry. For purposes of an RLV launch, requirements 
of 14 CFR part 440 apply. Financial responsibility requirements 
applicable to a particular mission are set forth in a license order 
that is part of an RLV mission license.

Section 431.83  Compliance Monitoring

    Section 431.83 of the final rule states the statutory requirement 
that a licensee must allow Federal officials or their designee access 
to observe activities associated with the conduct of a licensed 
mission, including contractor and subcontractor activities.
    Kelly commented that access should be qualified by noting that to 
the maximum extent possible it should be done on a non-interference 
basis. ERPS requested clarification of FAA compliance monitoring 
policy.
    In fulfilling its safety mandate, the FAA may observe activities 
associated with the conduct of licensed activity, including activities 
conducted at a production facility or assembly site, as necessary to 
ensure compliance by a licensee with the terms and conditions of a 
license. Representations made by a licensee in its application are part 
of the license and the FAA may observe any activities associated with 
the conduct of licensed activity to ensure adherence to representations 
made in a license application. The FAA does not use, and has not used, 
its authority to interfere with applicant activities or to in any way 
obstruct them. However, the FAA is entitled by law to full access to 
facilities and need not give a licensee notice of its intent to monitor 
activities.

Section 431.85  Registration of Space Objects

    Section 431.85 of the final rule retains proposed requirements for 
registration of space objects to facilitate fulfillment of 
responsibilities accepted by the United States as a signatory to the 
Convention on Registration of Objects Launched into Outer Space.

Subpart F--Environmental Review

    Subpart F contains environmental review requirements applicable to 
licensing of RLV missions. The FAA must comply with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., Council on 
Environmental Quality Regulations for Implementing the Procedural 
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508 and its own procedures.

Section 431.91  General

    Section 431.91 of the final rule sets forth the basic requirement 
that an applicant for an RLV mission license must provide to the FAA 
sufficient information to enable the FAA to analyze the environmental 
impacts of proposed RLV mission activities, including those to be 
performed at a reentry site. Comparable requirements for launch site 
impacts are already required under 14 CFR 415.101, and are not repeated 
here.

Section 431.93  Environmental Information

    Section 431.93 lists the categories of information the FAA requires 
from an applicant in order to analyze and assess environmental impacts 
resulting from use of a launch site, reentry site or contingency abort 
location or RLV in the conduct of an RLV mission, if use of that site 
or vehicle as proposed is not already covered by existing environmental 
documentation. The same would apply to reentry of a payload that may 
have significant environmental impacts in the event of a reentry 
accident. Other information needed by the FAA for the agency to comply 
with its environmental review requirements under NEPA is also required 
from the applicant. Specific reference to the launch site proposed for

[[Page 56648]]

the conduct of an RLV mission is added to the final rule to address 
proposed use by an RLV operator of a private site not already assessed 
by existing Federal environmental documentation.
    Kelly registered its concern that attempts to comply with 
environmental laws have been known to quash commercial projects and 
expressed unease at the number of potentially applicable laws and the 
research needed to identify and comply with them. Kelly suggested that 
the FAA be aggressive, with support from Congress, in assuring that 
environmental laws do not prevent the RLV industry from developing. In 
a similar vein, ERPS was concerned that every new type of RLV could be 
subject to environmental review requirements and associated burdens. 
ASTi suggested that a licensed site operator should bear responsibility 
for covering vehicles in its environmental documentation.
    The FAA understands the commitment required by government and 
industry to facilitate environmental reviews required by law. Pre-
application consultation is a useful device for scoping environmental 
review issues presented by an RLV mission proposal, in addition to 
technical safety and policy matters. Issues presented by a specific 
proposal would depend upon the proposed action, the proposed sites and 
contingency abort locations if any will be used as part of an 
application, and the vehicle proposed for flight. To the extent those 
issues are covered by existing documentation, such as that prepared in 
support of a site operator license, the FAA ``tiers off'' of such 
documentation to ensure reviews are conducted only to the extent 
necessary to deal with the unique attributes of a proposed mission. For 
example, the FAA facilitates environmental reviews for launch vehicles 
by covering in programmatic documentation a range of vehicle 
characteristics. Accordingly, for many vehicles, only site specific 
environmental effects may require analysis.
    The FAA works closely with an applicant to identify particular 
environmental data and documentation needs and ensure compliance with 
applicable environmental laws. The agency encourages early involvement 
by an applicant in preparation of environmental documentation to 
facilitate the environmental review process and satisfy an applicant's 
scheduling needs.

Part 433--License To Operate a Reentry Site

Section 433.1  General

    A new part 433 is added to 14 CFR Chapter III governing licensing 
of the operation of a reentry site. The FAA will evaluate safety issues 
on a case by case basis to allow prospective operators maximum 
flexibility in determining the array of services that may be offered at 
a site and this principle is reflected in Sec. 433.1 of the final rule.
    A license would be required for an entity to operate a reentry site 
and offer it for use by reentry vehicle operators. A separate license 
to operate a reentry site is not required for an RLV or reentry vehicle 
operator to develop and use a private facility for its exclusive use. 
Safety and environmental issues associated with private use of a site 
by a launch or reentry licensee, as well as an RLV mission licensee, 
would be addressed as part of the license to operate the vehicle.

Section 433.3  Issuance of a License To Operate a Reentry Site

    Section 433.3 of the final rule establishes that, consistent with 
its statutory mandate, the FAA will license an operator to operate a 
reentry site in accordance with representations presented in an 
application for review and approval by the FAA, and subject to terms 
and conditions stated in the license.
    Kelly and ASTi inquired as to whether safety operations conducted 
at a reentry site would be the sole consideration for licensing 
operation of a site. The FAA's mandate in licensing the operation of a 
reentry site also includes consideration of national security and 
foreign policy interests of the United States. Government policy 
considerations would also be a factor in determining whether a license 
to operate a reentry site may be issued. However, issuance of a license 
to operate a reentry site would not authorize an RLV or reentry vehicle 
operator to use that site. An operator wishing to use the site for 
reentry would have to demonstrate through the licensing procedure 
applicable to it that the site is suitable for the use proposed by that 
operator in accordance with FAA regulations.
    NorthStar noted in its comments that a site may qualify as a 
reentry site under certain conditions that may not exist on a year-
round basis due to atmospheric or other conditions. The FAA agrees and, 
consistent with its approach to licensing commercial space 
transportation activities, the authorization granted by a license to 
operate would be limited to representations and information contained 
in the application and evaluated by the FAA.

Section 433.5  Operational Restrictions on a Reentry Site

    In addition to other limitations on operation imposed by the FAA in 
accordance with Sec. 433.3, a reentry site may only be offered for use 
by those reentry vehicles, including RLVs, for which the three-sigma 
footprint of the vehicle is wholly contained within the site. Whereas 
Sec. 431.43(b) imposes a restriction on an RLV operator in identifying 
suitable landing sites, a licensed reentry site operator would be 
similarly restricted in terms of the vehicles that may land at its 
reentry site. The criteria applicable to identifying and defining the 
three-sigma dispersion of a reentry vehicle presented above in the 
discussion of Sec. 431.43(b) and the agency's three-pronged public 
safety strategy for RLV missions also applies to Sec. 433.5.
    Orbital Sciences observed that an RLV stage that is not itself a 
reentry vehicle is not covered by the definition of a reentry site and 
therefore its landing would not be regulated by the FAA. Landing of 
stages is covered by Sec. 431.43(b), which applies to vehicle staging 
impact areas as well as nominal landing and contingency abort locations 
for an RLV.

Section 433.7  Environmental

    Because licensing the operation of a reentry site is a major 
Federal action requiring compliance by the FAA with NEPA and associated 
regulations, Sec. 433.7 of the final rule requires that a license 
applicant supply sufficient information to the FAA to enable the agency 
to do so.

Section 433.9  Environmental Information

    The FAA understands that a proposed reentry site may be covered by 
existing documentation that addresses environmental impacts when that 
site is used for certain purposes. Reentry impacts may require 
additional environmental consideration and Sec. 433.9 establishes the 
requirement that information necessary for doing so must be provided by 
an applicant for a license to operate the site as a reentry site. A 
licensee authorized to operate a launch site may, for example, be 
required to submit additional data for agency review under 
environmental laws before the site may also be authorized for use as a 
reentry site.

[[Page 56649]]

Part 435--Reentry of a Reentry Vehicle Other Than a Reusable Launch 
Vehicle (RLV)

    A new part 435 is added to 14 CFR Chapter III under the final rule 
to address licensing requirements for reentry of a reentry vehicle that 
is not an RLV. Since the COMET/METEOR program was discontinued, all of 
the reentry concepts presented to the FAA for informational purposes or 
in pre-application consultation have involved RLVs. The final rule 
therefore provides detailed requirements for obtaining an RLV mission 
license under part 431. Rather than repeat in part 435 all of the 
requirements of part 431 that are applicable to the reentry phase of an 
RLV mission, part 435 expressly states requirements and licensing 
considerations that are unique to reentry of a reentry vehicle that is 
not an RLV. An applicant for a license under part 435 is referred to 
part 431 for additional requirements applicable to a proposed reentry.
    The FAA uses the same three-pronged strategy to address public 
safety considerations employed in evaluating an RLV mission. Comments 
were solicited on the proposed approach of assessing reentry risk in 
combination with the launch of the launch vehicle that placed the 
reentry vehicle in Earth orbit or outer space. ERPS commented on this 
combined approach to risk noting that an RLV mission to launch a 
reentry vehicle as a payload for subsequent reentry involves three 
events that, in combination, must satisfy the expected casualty risk 
criteria for an RLV mission, that is, launch and reentry of an RLV and 
subsequent reentry of the reentry vehicle. ERPS also stated that if the 
RLV and reentry vehicle have different operators, they would be 
required to negotiate their respective risks and the RLV mission 
licensee would have to certify to the FAA that mission risk is within 
acceptable limits even though it is not the reentry vehicle operator. 
ERPS therefore recommends retention of the combined risk approach 
unless the reentry vehicle is intended to reenter after an RLV mission 
license has expired.
    The FAA does not agree with the recommended approach offered by 
ERPS. Currently, in licensing ELV launches, the FAA considers, in some 
measure, reentry of upper stages after an ELV launch is completed for 
purposes of assessing launch risk because that is part of the launch 
mission. In response to a question from Kelly regarding upper stage 
reentry risk, the FAA would assess the risk of reentry of an expendable 
upper stage of an RLV as part of mission risk for an RLV mission. 
Reentry of a reentry vehicle placed in orbit as part of an RLV launch 
mission ought to be assessed as part of RLV mission risk, in the FAA's 
view, just as an RLV utilizing multiple stages would be subject to 
combined risk assessment for the mission, because its reentry may be 
considered part of the launch mission. The FAA notes, however, that its 
combined risk approach would apply only to launch vehicle stages and to 
payloads that are themselves reentry vehicles. It would not apply to 
natural de-orbiting of a satellite placed in space by an ELV or RLV for 
which purposeful return to Earth, substantially intact, is not 
intended, because the return to Earth is not part of the launch 
mission.
    Subpart A establishes the kinds of reentry licenses that may be 
granted by the FAA and the approvals necessary to obtain a reentry 
license and describes in general terms the authorization granted by a 
reentry license.
    Subpart B identifies the policy review and approval required for a 
reentry license and incorporates policy review and approval 
requirements applicable to reentry of an RLV under part 431, subpart B 
of 14 CFR Chapter III, subchapter C.
    Subpart C identifies the safety review and approval required for a 
reentry license and incorporates safety review and approval 
requirements applicable to reentry of an RLV under part 431, subpart C 
of 14 CFR Chapter III, subchapter C. The combined risk criteria for a 
proposed reentry mission is identified in Sec. 435.35 of the final rule 
to be consistent with that applicable to an RLV mission.
    Subpart D identifies the payload reentry review and determination 
required for a reentry license and incorporates requirements applicable 
to a payload reentry determination under part 431, subpart D of 14 CFR 
Chapter III, subchapter C.
    Subpart E identifies post-licensing requirements and license terms 
and conditions applicable to a reentry license and incorporates 
requirements applicable to reentry of an RLV under part 431, subpart E 
of 14 CFR Chapter III, subchapter C.
    Subpart F identifies environmental review requirements applicable 
to reentry of an RLV under part 431, subpart F of 14 CFR Chapter III, 
subchapter C.
    Except for the comments cited in the above paragraphs of this part, 
comments directed at provisions of proposed part 435 repeated and 
reiterated industry concerns registered with respect to corresponding 
requirements of part 431. Likewise, the FAA echoes its response to 
those comments and does not separately discuss them here. Other than 
nonsubstantive corrections, the FAA makes no change to part 435 in the 
final rule from that proposed in the NPRM.

Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA has submitted a copy of these sections to the Office 
of Management and Budget for its review. The collection of information 
was approved and assigned OMB Control Number 2120-0643. This final rule 
will amend the commercial space transportation licensing regulations by 
establishing operational requirements for launches of reusable launch 
vehicles (RLVs) and the authorized conduct of commercial space reentry 
activities. The final rule will respond to advancements in the 
development of commercial reentry capability and enactment of 
legislation extending the FAA's licensing authority to reentry 
activities. The agency is proposing requirements that limit risk to the 
public from RLV and reentry operations.
    The required information will be used to determine whether 
applicants satisfy requirements for obtaining a launch license to 
protect the public from risks associated with RLV missions and other 
reentries. The information collected includes data required for 
performing a safety review, which includes a technical assessment to 
determine if the applicant can safely reenter a reentry vehicle, 
including an RLV and payload, if any, to a designated reentry site 
without jeopardizing public health and safety and safety of property. 
The frequency of required submissions may depend upon the frequency of 
licensed launch activities; however, a license may authorize more than 
one launch. The agency received two comments on potential paperwork 
burden. One commenter agreed with FAA's estimated cost of $20,000 per 
license application and the other commenter stated that as currently 
done a large amount of paperwork exists to complete the licensing 
process. Once the regulatory process is complete the company does not 
believe their there will be enhanced operational efficiency and 
decreased paperwork costs. Neither entity presented any compelling 
information that disputes FAA's position regarding paperwork reduction. 
The estimated number of respondents on an annual basis is five. The 
estimated average annual burden is 4,384 hours.
    An agency may not conduct or sponsor and a person is not required 
to respond to a collection of information

[[Page 56650]]

unless it displays a currently valid Office of Management and Budget 
(OMB) control number.

International Compatibility

    The FAA has determined that a review of the Convention on 
International Civil Aviation Standards and Recommended Practices is not 
warranted because there is not a comparable rule under ICAO standards.

Regulatory Evaluation Summary

    Proposed and final rule changes to Federal regulations must undergo 
several economic analyses. First, Executive Order 12866 directs that 
each Federal agency propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Agreements Act also requires agencies to consider 
international standards and, where appropriate, use them as the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, the FAA has determined that the final 
rule: (1) Has benefits that do justify its costs, is not ``a 
significant regulatory action'' as defined in the Executive Order, and 
is ``significant'' as defined in the Department of Transportation's 
Regulatory Policies and Procedures; (2) will not have a significant 
impact on a substantial number of small entities; (3) will not reduce 
barriers to international trade; and (4) does not impose an unfunded 
mandate on State, local, or tribal governments, or on the private 
sector. These analyses are available in the docket, and are summarized 
below.

Baseline for Economic Analysis

    The final rule implements certain policies developed by AST in 1992 
with respect to public safety for the first commercial space reentry 
operation. However, the safety criteria in this final rule use 
different measures that better reflect current agency and range safety 
practices. The 1992 policy established safety criteria pertaining to a 
unique and specific request to conduct a first-of-a-kind payload 
reentry mission; that is, the COMET, later renamed METEOR, reentry 
vehicle. Accordingly, a comprehensive regulatory (benefit-cost) 
analysis was not required. Therefore, the baseline case used for this 
analysis views the final rule as a new requirement imposed on an 
emerging segment of the commercial space transportation industry that 
plans to operate reusable launch vehicles (RLVs) or conduct reentry 
operations with reentry vehicles (RVs). Doing so implies that, but for 
imposition of safety requirements by the agency, some compliance costs 
will not have been incurred by entities planning to conduct RLV 
missions (launch and reentry) and RV operations that are associated 
with launches from Federal ranges and non-Federal launch sites. 
(Regulatory costs and benefits associated with launches from Federal 
ranges are assessed as part of a separate rulemaking on launch 
licensing requirements for launches from Federal ranges.)

Costs

    The final rule is expected to impose a total estimated cost of $151 
million ($86 million, discounted), in 1999 dollars, on the commercial 
space transportation industry and the FAA over the 15-year period from 
2001 to 2015. Commercial space transportation industry entities 
potentially impacted by the final rule will incur approximately 20 
percent (or $31 million) of this total cost estimate in the form of 
compliance costs. The FAA will incur about 70 percent (or $120 million) 
of the total cost estimate in the form of administrative costs. All 
monetary values shown in this regulatory evaluation summary are 
expressed in 1999 dollars over the 15-year period. Due to some of the 
operational requirements of the final rule, costs may materialize that 
have not been specifically considered in this evaluation. For example, 
the requirement for each commercial space operator to have an 
independent safety inspector could, under certain circumstances, result 
in costs not examined in this evaluation. The independent safety 
inspector could require the operator to abort a launch or reentry for 
safety reasons, which could result in higher operating costs.
    Reentry of RLVs and RVs are subject to comparable safety 
requirements and therefore regulatory costs for reentry are assessed 
collectively. Costs are assessed on the basis that, over the next 15-
year period, five commercial operators of RLVs or RVs will be impacted 
by the regulations. It is assumed that five operators will obtain all 
necessary approvals to conduct RLV missions or RV reentries and that 
market demand is sufficient to support that level of vehicle operation.

Industry Compliance Costs

Section 431.25: Application Requirements for Policy Review and 
Sec. 435.23 Policy Review Requirements and Procedures

    These sections of the final rule will impose an administrative 
paperwork burden on each of the five anticipated commercial space 
industry operators potentially impacted by requiring them to provide 
specific policy review information to the FAA with regard to their 
anticipated RLV missions (launch and reentry) or RV reentry operations. 
The cost estimate of $400 per operator assumes an employee with an 
annual loaded salary of approximately $2000 (with fringe benefits) and 
a level of effort of eight hours.

Section 431.33: Safety Organization and Sec. 435.33: Safety Review 
Requirements and Procedures

    Under the baseline, a safety organization with clearly defined 
roles, responsibilities, authorities, and lines of communication is 
consistent with the findings and recommendations of the Rodgers 
Commission and National Transportation Safety Board. However, the 
requirement to `` * * * designate a qualified safety official * * * to 
monitor independently compliance * * * with * * * [all] safety policies 
and procedures'' is not necessarily customary and usual practice. 
Inclusion of this requirement suggests that it is a refinement of 
industry baseline practices designed to mitigate safety risks to the 
public. For example, to be ``responsible for the conduct of all * * * 
mission activities * * * '' implies a degree of comprehensiveness that 
may not be common practice in industry. Because the safety official 
must be independent, the function cannot be assigned as a collateral 
duty to an individual with line responsibility for launch and reentry 
operations, though it could conceivably be assigned to an existing 
employee. Furthermore, the magnitude of responsibilities of the safety 
official suggests that the level of effort required to perform this 
function will exceed part-time employment. Assuming that the 
independent safety official function will not be performed as a 
collateral duty, this requirement will result in a commercial space 
transportation entity hiring a person to

[[Page 56651]]

fulfill the safety official role. Industry as a whole will incur $6.4 
million for all five operators over the 15-year period.

Section 431.35: Acceptable Reusable Launch Vehicle Mission Risk and 
Sec. 435.35  Acceptable Reentry Risk for Reentry of a Reentry Vehicle

    Commercial space transportation entities are expected to incur 
additional costs for performance of risk analyses of vehicle 
operations, including reentry, and will incur costs in assessing the 
probabilities and consequences of all reentry hazards, events, and 
system failures that potentially expose the public to risk. 
Additionally, commercial entities will expend effort preparing 
documentation and establishing an associated document control system 
for drawings and schematics. This compliance activity is expected to 
fulfill the level of rigor implied by the requirements contained in the 
final rule. The total cost of compliance for all potentially impacted 
operators will be approximately $4 million over the 15-year period.

Section 431.37: Mission Readiness and Sec. 435.33: Safety Review 
Requirements and Procedures

    The requirement to provide specific procedures to the FAA that 
verifies mission readiness presents an administrative paperwork burden 
to a commercial entity. This requirement will cause an operator to 
incur costs for preparing and submitting the requisite information to 
the FAA. For all entities, this requirement will impose an estimated 
cost of compliance of approximately $20,300 over the 15-year period.

Section 431.39: Mission Rules, Procedures, Contingency Plans, and 
Checklists and Sec. 435.33: Safety Review Requirements and Procedures

    Commercial space transportation entities are generally expected to 
fulfill the requirements as part of their standard operating 
procedures. However, the FAA anticipates that these entities will incur 
some additional costs conforming to FAA requirements. Additionally, 
commercial entities are expected to incur costs from submitting updated 
documents with the FAA periodically, and preparing for, accommodating 
and reacting to FAA inspection and compliance monitoring activities. 
Industry will incur $418,000 over the 15-year period.

Section 431.41: Communications Plan and Sec. 435.33: Safety Review 
Requirements and Procedures

    Commercial space transportation entities are expected to have in 
place communications plans that, for the most part, are consistent with 
the final regulatory requirements as a matter of standard business 
practice. However, they are expected to incur incremental costs 
complying with the requirement, annual recurring costs from interfacing 
and exchanging documents with the FAA periodically and preparing for, 
accommodating and reacting to FAA inspection and compliance monitoring 
activities. Industry will incur $418,000 over the 15-year period.

Section 431.43: Reusable Launch Vehicle Mission Operational 
Requirements and Restrictions and Sec. 435.33: Safety Review 
Requirements and Procedures

    Commercial space transportation entities are expected to expend 
additional levels of effort to comply with risk mitigation requirements 
that, to some extent, limit vehicle flight path options during nominal 
and non-nominal operations. This requirement also imposes limitations 
on dwell time over populated areas and requirements for performing a 
collision avoidance analysis during launch windows to maintain adequate 
separation from orbiting objects.
    This final rule will impose work restrictions and personnel rest 
requirements on commercial space transportation entities potentially 
impacted by this action. For example, an individual having direct 
control over reentry or involved in decisions affecting reentry 
operations is restricted to working 60 hours over the seven-day period 
preceding reentry. Further, the final rule will reduce the maximum 
permissible hours worked per shift to 12, limits the maximum number of 
consecutive workdays to 14, and specifies the minimum rest required (48 
hours) between five consecutive days of 12-hour work shifts.
    Currently, based on information received from industry, it is 
common practice among commercial space transportation entities to 
follow Air Force work and rest standards for launches. Those standards 
are similar to the requirements of this rule. Ordinarily, based on 
industry information, launch mission operations personnel work less 
than the maximum currently permissible, such as a 40-hour work week 
comprised of five eight-hour shifts. Hence, the 72-hour workweek is 
generally an extreme condition that occurs infrequently.
    The duration of a reentry operation is likely to determine the 
extent of the impact that the work and rest requirements will have on 
commercial space transportation entities. However, this impact will 
occur under extreme or limiting conditions only (e.g., one reentry 
operations person).
    Given the relatively small size of the entities comprising the 
emerging RLV segment of the commercial space transportation industry, 
staff augmentation of at least one person is not unlikely as a result 
of the requirements. Additionally, the FAA anticipates that additional 
costs will be incurred for recordkeeping to ensure compliance with 
required work and rest standards, and preparing for, accommodating and 
reacting to FAA inspection and monitoring activities.
    The total cost to industry for the 15-year period will be about $15 
million.

Section 431.45: Accident Investigation and Emergency Response Plan and 
Sec. 435.33: Safety Review Requirements and Procedures

    As a matter of standard business practice, commercial entities are 
expected to have in place emergency response plans consistent with much 
of the regulatory requirement. However, the FAA anticipates that these 
plans will require additional annual maintenance to comply with certain 
elements of the final rule. For example, entities are likely to incur 
additional costs to establish their ability to successfully respond to 
accidents occurring in remote areas having sparse populations. 
Furthermore, additional annual maintenance costs are expected to arise 
from preparing for, accommodating and reacting to FAA inspection and 
monitoring activities. Industry will incur total compliance costs of 
approximately $2 million for the 15-year period.

Section 431.57: Information Requirements for Payload Reentry Review and 
Sec. 435.43: Payload Reentry Review Requirements and Procedures

    The final requirement to provide specific payload information to 
the FAA presents an administrative paperwork burden to a commercial 
entity. The submission of data to the FAA is estimated to impose costs 
of approximately $400 per application or $2,000 for five entities over 
the 15-year period.

[[Page 56652]]

Section 431.73: Continuing Accuracy of License Applications Application 
for Modification of License and Sec. 435.51: General--Post Licensing 
Requirements--Reentry License Terms and Conditions

    The final requirement will impose minor costs on a licensee to 
advise the FAA of material changes to its application, and RLV and 
reentry missions that may impact public safety and property. Depending 
upon the types of changes reported, it is assumed based on input 
received from FAA and industry technical personnel that, on average, a 
commercial space transportation entity will incur incremental 
compliance costs of approximately $34,000 per modification application. 
Industry as a whole will incur total compliance costs of approximately 
$170,000 for the 15-year period.

Section 431.75: Agreements and Sec. 435.51: Post Licensing 
Requirements--Reentry License Terms and Conditions--General

    Entities that conduct commercial launches of ELVs from Federal 
ranges must enter into formal agreements with the Federal range 
authority prior to using such facilities. Entities planning to use 
these same facilities for reentry missions will also be required to 
enter into such agreements. The final requirement has no impact on 
commercial entities other than the negligible level of effort expended 
(e.g., less than one hour) to advise the FAA of compliance, and the 
incremental cost to industry to comply with this requirement will be 
negligible.

Section 431.77: Records and Sec. 435.51: Post Licensing Requirements--
Reentry License Terms and Conditions--General

    It is generally accepted practice among all commercial concerns to 
maintain business operations records for some period of time, often 
more than three years. Furthermore, the availability and capability of 
electronic storage systems renders records retention a manageable task. 
Accordingly, the three-year requirement to maintain records for FAA 
review, upon request, will not impact commercial space transportation 
entities. From a worst case perspective, this evaluation assumes the 
FAA will exercise its record request authority. Total costs to industry 
will be approximately $24,000 for the 15-year period.

Section 431.79: RLV Mission Reporting Requirements and Sec. 435.51: 
Post Licensing Requirements--Reentry License Terms and Conditions 
(General)

    The information to be supplied by a licensee under this requirement 
is similar to that supplied previously to the FAA during the 
application process in accordance with Sec. 431.57. The burden placed 
on the licensee is to provide more specific mission data than that 
supplied previously but closer in time to the actual conduct of the 
mission. Because an operator must have this data to perform a scheduled 
mission, the incremental cost to industry to comply with this final 
requirement will be zero.

Section 431.93: Environmental Information and Sec. 435.61: 
Environmental Review--General

    Because licensing is a major Federal action, a commercial space 
transportation entity will be required to provide information 
addressing the environmental effects of its operations so that the 
agency can fulfill its responsibility under NEPA and CEQ environmental 
regulations, even in the absence of the final rule. Commercial entities 
planning to conduct launch and reentry missions must submit 
environmental assessment data to the FAA regarding environmental 
impacts of its activities to enable the FAA to evaluate environmental 
effects not previously assessed by the agency. This will cause a 
commercial entity to incur incremental compliance costs of $278,000. 
Industry will incur compliance costs of $1.4 million over the 15-year 
period.

Section 433.7: Environmental Information

    An analysis of the environmental impacts of operating a reentry 
site is required under NEPA. The requirement, as distinct from similar 
requirements for operation of a launch site, will cause a commercial 
entity to incur incremental compliance costs of $167,000. Industry will 
incur total compliance costs of approximately $834,000 over the 15-year 
period.

FAA RLV/RV Administrative, License Processing and Monitoring Costs

    The final rule will result in the FAA expending great effort in 
evaluating RLV mission and reentry license applications and monitoring 
licensees for compliance. This evaluation estimates that the FAA will 
incur costs of approximately $120 million over the 15-year period, as 
the result of administering its review of license applications and 
monitoring licensee compliance in accordance with the requirements of 
certain sections of parts 431, 433, and 435.
    The FAA's actual experience in evaluating an application to conduct 
a reentry mission is limited to the COMET/METEOR program. Much of the 
final rule reflects safety policies for reentry developed by the agency 
in 1992 to ensure that the COMET/METEOR payload reentry mission will 
not jeopardize public health and safety and or the safety of property. 
Consequently, this experience provides a partial basis for establishing 
the costs to the FAA for administering the final rule. Using this past 
experience, AST expects that the costs to be incurred in performing its 
RLV mission and reentry licensing pre-application consultation, 
application evaluation, and compliance monitoring duties in the near 
term to be higher than that incurred for COMET/METEOR for a single 
application, with or without a formal reentry licensing regulation. The 
extent to which such costs will be higher than that incurred for COMET/
METEOR is unknown since there is no history of U.S. commercial reentry 
activity. The assessment of higher application costs, however, is 
largely due to the expectation that inherently more complex RLV 
programs will dominate reentry missions in the future and initially 
these will require greater evaluative effort on the part of FAA 
personnel until they have developed experience in this area. While AST 
budget estimates for fiscal year 2000 reflect additional funding needed 
to exercise its reentry mission approval function, this need cannot be 
attributed to the final rule, but rather to the complexity associated 
with the advancing technology that will be evaluated.
    AST budget estimates of the cost to perform its pre-application 
consultation and application evaluation licensing responsibilities may 
be correlated collectively to Secs. 431.23, 431.27, 431.31, 431.47, 
431.55, 431.59, and 431.91; 433.3, 433.9; and 435.23, 435.31, 435.43, 
and 435.61 of the final regulation. The costs to be incurred by the FAA 
to implement its compliance monitoring responsibilities corresponding 
to Secs. 431.73, 431.83, and 435.51 can vary widely, as the spectrum of 
changes to reentry program operations can range from minor to major. 
Therefore, the FAA expects to spend $3.6 million--an amount equivalent 
to that expended for COMET/METEOR--to implement and administer these 
final requirements for a single application.
    Based on projections of the level of application activity over the 
15-year period from 2001 to 2015, the FAA is

[[Page 56653]]

expected to spend approximately $120 million in administering the 
safety requirements of parts 431, 433, and 435. Approximately 94 
percent (or $112 million) of the cost by the FAA to administer these 
parts will be incurred to approve the projected reentry license 
applications and modifications to be evaluated over the 15-year period. 
Approximately 6 percent (or $7.7 million) of the cost to administer 
parts 431, 433, and 435 will be expended on the review of application 
denials and reconsideration process.
    Unlike the estimates for potential benefits, the costs section of 
this evaluation uses a point (or single) estimate rather than a range. 
The point estimate approach was chosen in estimating FAA administrative 
costs because, due in large measure to the agency's experience with the 
COMET/METEOR Program, there is far less uncertainty associated with the 
estimation of costs for this final rule relative to benefits.

Benefits

    The final rule is expected to generate both quantitative and 
qualitative benefits. This rule is expected to generate quantitative 
benefits of $119 million (or $66 million, discounted), which represents 
enhanced safety over the 15-year period. Benefits include enhanced 
safety by limiting reentry risk to a level that does not exceed an 
expected average number of 30 casualties per one million RLV missions 
or reentries for the general public. The rule is also expected to 
generate qualitative benefits in the form of enhanced operational 
efficiency on the part of both the U.S. commercial space industry and 
the FAA. A formalized licensing process for reentry operations will 
enhance communications between the FAA and the commercial space 
transportation industry in terms of frequency and efficiency of 
information exchange. In so doing, it will instill a regulatory climate 
that will promote and foster growth and technological advancement in 
this maturing industry.

Quantitative Benefits

    The potential safety benefits that are expected to accrue as the 
result of this final rule stem principally from a safety criterion 
implemented and administered by the FAA on commercial space 
transportation industry operators who wish to engage in RLV missions or 
reentries. The criterion is as follows:

    Ec 30  x  10-\6\: This 
criterion applies on a per mission basis and includes both launch 
and reentry phases of an RLV mission. It requires that the risk to 
the public associated with each mission incorporate a level of 
safety that is equivalent to a probabilistic outcome of no more than 
an expected average number of 30 public casualties per one million 
missions.

    Compliance by operators with this safety criterion, along with 
other restrictions addressed in the final rule, are intended to limit 
risk to public safety. In estimating these potential safety benefits, 
the FAA employed the following steps.
    First, the agency examined six accident types, grouped into two 
categories, related to airborne explosions and ground point-of-impact 
crashes. (For the purpose of this evaluation, the term accident is 
defined as any unplanned event with potential public casualty losses.) 
For each accident category--airborne or ground--the population density 
of the area surrounding the accident scene or accident zone can be 
either (1) none, (2) sparse (e.g. rural), or (3) dense (e.g., urban). 
An examination of the consequences of these types of accidents was 
conducted. To arrive at accident consequences, the accident scenes or 
zones for airborne and ground accidents are characterized in terms of 
fatalities, injuries, and property damage under the baseline and the 
final rule. The difference between the baseline scenario and final rule 
scenario represents the incremental safety benefits that will be 
generated by the final rule. This process was performed for each of the 
steps below.
    Second, monetary values are assigned to each of the various types 
of accidents expected to occur during launch or reentry (including 
accidents at or near launch sites).
    Third, probabilities are assigned to each of the six accident types 
based on the percentage of impacted landmass (e.g., no population, 
sparse population, and dense population) for the baseline and the final 
rule. That is, the probability of occurrence for each accident type 
over the next 15 years was determined by using the two types of risk 
criteria mentioned earlier.
    Fourth, expected values were estimated for each of the accident 
types under the baseline and the final rule. For this final rule, the 
expected benefit values represent the difference between these two 
scenarios. One of the more difficult areas to ascertain is the 
probability of a reusable launch vehicle (RLV) accident in the absence 
of government regulation in order to calculate the expected value of an 
accident under the baseline and estimate the incremental safety 
benefits of the final rule. This difficulty stems from the fact there 
is no empirical evidence or historical RLV accident history. Because of 
this difficulty, there is uncertainty associated with estimating the 
probability of a RLV or RV accident. As a result of this uncertainty, 
the FAA estimated a range of accident probabilities, which are based on 
historical experience with ELV accidents and incidents, and sorted them 
into six categories or types of accidents. In estimating the expected 
casualty and property loss values, the probability of each of six 
accident types is multiplied by the accident consequence values (e.g., 
the cost of an accident). This process was repeated for all six 
accident types and summed. This procedure was done for both scenarios 
(baseline and final rule). Thus, the difference in casualty and 
property losses for these two scenarios was used as the estimated 
benefits for this final rule. The results of these calculations 
generate the potential safety benefits as discussed below.
    Safety benefits--accident costs avoided--are realized as RLV launch 
and reentry operations are performed, without incident. Therefore, the 
number of completed RLV missions and reentries projected over the 15-
year period is multiplied by incremental safety benefits per mission to 
estimate total incremental safety benefits over the period 2001 to 
2015. The total safety benefit resulting from the final rule is 
estimated to be $119 million for the period 2001 to 2015. This estimate 
of $119 million represents the midpoint of benefits ranging from $21 
million to $217 million over the 15-year period. This midpoint estimate 
of benefits was chosen because of the high degree of uncertainty 
associated with the wide range of accident probabilities. Uncertainty 
stems from the extent to which industry has already adopted and 
implemented safety measures similar to those requirements as part of 
this rulemaking action. (Based on information obtained from commercial 
space industry technical personnel, nearly all of the potentially 
impacted operators will be in compliance with the final rule to some 
degree.) The low end of the range of benefits assumes that practically 
all of the potentially impacted operators will be in almost complete 
compliance in the absence of the final rule. The high end of the range 
of benefits assumes the opposite. There is insufficient information 
that will support adopting the benefits estimates at either end of the 
range. Thus, the median(or midpoint) was chosen as an appropriate 
benefits estimate. It suggests that the actual benefits to be generated 
by the final rule lie somewhere between the lower and upper end of this 
range.

[[Page 56654]]

Since uncertainty is associated with using a midpoint benefits estimate 
and range of benefits, the FAA solicits public comment as to whether 
its assumptions are appropriate and the validity of this approach. The 
agency asks that comments be specific and supported by quantitative 
data wherever possible.

Qualitative Benefits

    The final rule is also expected to generate qualitative benefits in 
the form of enhanced operational efficiency to both the FAA and the 
commercial space industry. These types of benefits are not readily 
quantifiable. Examples of these qualitative benefits are shown below.
    Formalizing licensing responsibilities for RLV and reentry 
operations (by establishing a specific regulation) will emphasize FAA 
duties and expectations.
    It will also better define the licensing process relative to the ad 
hoc approach implemented for COMET and METEOR. This will afford 
applicants with clearly defined direction, possibly helping to 
facilitate the iterative pre-application consultation process. As the 
number of requests for RLV and reentry licensing increases, formality 
will also help ensure consistency in implementing the licensing 
process. This could lead to cost-savings to the FAA as a result of 
economies of scale from repetitive operations. These cost savings will 
spill over to commercial space transportation entities by reducing the 
turnaround time between application submittal and licensing approval.
    Consistent application of the licensing process will help 
commercial space transportation entities gain familiarity with its 
requirements, leading to proficiency in their ability to interact with 
the process and the FAA. This in turn will lead to industry cost-
savings, possibly due to less rework or paperwork avoided.
    A formalized licensing process for reentry operations will enhance 
communications between the FAA and the commercial space transportation 
industry in terms of frequency and efficiency of information exchange. 
In so doing, it will instill a regulatory climate that will promote and 
foster growth and technological advancement in this maturing industry, 
while protecting public health and safety, and the safety of property.

Summary of Total Costs and Benefits

    The total quantitative potential benefits and costs of this final 
rule are shown below in Table 1. This Table shows that the potential 
cost imposed by the final rule will be approximately $151 million over 
the 15-year period. Also shown in Table 1, about $31 million of this 
total cost will be incurred by industry. Table 1 also shows that the 
final rule will generate potential quantitative safety benefits of $119 
million over the 15-year period. As noted previously in the benefits 
section of this evaluation, this rule is also expected to generate 
qualitative benefits in the form of enhanced operational efficiency to 
both the FAA and the U.S. commercial space industry.

       Table 1.--Summary of Quantitative Total Costs and Benefits
------------------------------------------------------------------------
                                          Undiscounted   Discounted  (in
  Category (in 1999 dollars, 15 yrs.)    (in millions)      millions)
------------------------------------------------------------------------
Commercial Space Transportation                   $30.8            $20.4
 Industry Compliance Costs............
Federal Aviation Administration                   120.1             65.9
 Implementation Costs.................
Total Costs...........................            151.0             86.3
Accident Costs Avoided: Lower Bound                21.1             11.8
 (Safety Benefits)....................
Accident Costs Avoided: Upper Bound               216.6            120.9
 (Safety Benefits)....................
Total Accident Costs Avoided: Midpoint            118.9             66.3
 (Safety Benefits)....................
------------------------------------------------------------------------

Final Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and applicable statutes, to 
fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the Act (which was amended 
March 1996) requires agencies to solicit and consider flexible 
regulatory proposals and to explain the rationale for their actions. 
The Act covers a wide-range of small entities, including small 
businesses, not-for-profit organizations and small governmental 
jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 act provides that 
the head of the agency may so certify and an regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.
    The Small Business Administration has defined small business 
entities relating to space vehicles (Standard Industrial Codes 3761, 
3764, and 3769) as entities comprising fewer than 1,000 employees.
    The FAA projects that the commercial space industry will be 
composed of five small businesses over the 2001 to 2015 period. 
Furthermore, the FAA expects that the final rule will impact all five 
of these entities by imposing an average compliance costs of 
approximately $6 million over the 15-year period (in 1999 dollars).
    The annualized compliance cost to each small business is 
approximately $700,000 (in 1999 dollars). Ordinarily, this section of 
the evaluation will be based on typical financial data (for example, 
annual net income or losses) as a means to determine whether any of the 
commercial space transportation small entities would be significantly 
impacted by the final rule. However, the traditional use of such 
financial data for these small entities cannot be employed since RLV 
operators (including a number of RV operators) represent relatively new 
companies and they have no revenue history. In fact, these small 
operators are in the process of raising funds to finance their new 
ventures. Due to the lack of data on the financial characteristics of 
these small RLV operators, this evaluation uses the 1998 average 
revenue received per launch for ELV operators. The revenue that RLV 
operators will obtain from their customers is expected to be similar to 
the revenue that established ELV

[[Page 56655]]

operators currently receive from their customers. Revenue data based on 
ELV operators' experience will be used for the purpose of assessing the 
extent to which compliance with the final rule will impose significant 
economic impacts on each of the five potentially impacted small RLV 
operators. This assessment will be done by comparing the annualized 
cost of compliance to the annual average revenue, which is expected to 
be received by each of the five small RLV operators over the next 15 
years. While the long-term revenues of RLV operators are expected to 
exceed those of ELV operators, which will be due to inherent lower 
operating costs, for the purpose of this evaluation they are assumed to 
be nearly the same over the 15-year period, thereby representing a 
worst-case scenario. Hence, the average revenue of about $50 million 
generated by each ELV launch in 1999 will be used as a indicator of 
what RLV operators will be expected to generate per RLV mission in 
future years. This assessment is based primarily on information 
received for orbital launch events for ELV operators from the FAA's 
Office of Commercial Space Transportation Report entitled, ``Commercial 
Space Transportation: 1999 Year In Review'', Table 1 and the Appendix 
(January 2000).
    Each of the five potentially impacted small RLV entities is 
expected to average about seven missions per year over the next 15 
years. Using $50 million as an average expected revenue per mission, 
each entity will be expected to receive about $350 million in revenue 
($50m  x  7 missions annually) for all missions annually. The FAA has 
determined that none of the five small entities will incur a 
significant economic impact, since the average annualized cost of 
compliance ($681,000) will be only 0.2 percent of the anticipated 
average annual revenues of $350 for missions conducted annually.
    The FAA certifies that the final rule will not impose a significant 
economic impact on a substantial number of small businesses. Therefore, 
a regulatory flexibility analysis is not required. Furthermore, the 
final rule is not likely to cause small business failures or adversely 
impact their competitive position relative to larger businesses.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or diminish to the extent 
feasible, barriers to international trade, including both barriers 
affecting the export of U.S. goods and services to foreign countries 
and barriers affecting the import of foreign goods and services into 
the United States.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this final rule and has determined 
that it will have only a domestic impact and therefore no affect effect 
on any trade-sensitive activity.

Unfunded Mandates Act of 1995 Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments.
    Title II of the Act requires each Federal agency to prepare a 
written statement assessing the effects of any Federal mandate in a 
proposed or final agency rule that may result in a $100 million or more 
expenditure (adjusted annually for inflation) in any one year by State, 
local, and tribal governments, in the aggregate, or by the private 
sector; such a mandate is deemed to be a ``significant regulatory 
action.''
    Based on those impacts shown in the costs and benefits sections of 
the regulatory evaluation, the final rule does not contain such a 
mandate. Therefore, the requirements of Title II of the Unfunded 
Mandates Reform Act of 1995 do not apply to the final rule for RLV 
Reentry and Licensing Requirements.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we determined that this final rule does not have 
federalism implications.

Environmental Assessment

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental assessment (EA) or environmental impact statement (EIS). 
In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(i), 
regulatory documents which cover administrative or procedural 
requirements qualify for a categorical exclusion. Proposed 
Secs. 431.91, 431.93, 433.7, 433.9, and 435.61 would require an 
applicant to submit sufficient environmental information for the FAA to 
comply with NEPA and other applicable environmental laws and 
regulations during the processing of each license application. 
Accordingly, the FAA has determined that this rule qualifies for a 
categorical exclusion because no significant impacts to the environment 
are expected to result from implementation of its administrative 
provisions for licensing.

Energy Impact

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that the final rule is not a major regulatory action under the 
provisions of the EPCA.

List of Subjects

14 CFR Part 400

    Space transportation and exploration.

14 CFR Part 401

    Organization and functions (Government agencies), Space 
transportation and exploration.

14 CFR Part 404

    Administrative practice and procedure, Space transportation and 
exploration.

14 CFR Part 405

    Investigations, Penalties, Space transportation and exploration.

14 CFR Part 406

    Administrative practice and procedure, Space transportation and 
exploration.

14 CFR Part 413

    Confidential business information, Space transportation and 
exploration.

14 CFR Part 415

    Aviation safety, Environmental protection, Space transportation and 
exploration.

14 CFR Part 431

    Aviation safety, Environmental protection, Investigations, 
Reporting and recordkeeping requirements,

[[Page 56656]]

Rockets, Space transportation and exploration.

14 CFR Part 433

    Aviation safety, Environmental protection, Investigations, 
Reporting and recordkeeping requirements, Rockets, Space transportation 
and exploration.

14 CFR Part 435

    Aviation safety, Environmental protection, Investigations, 
Reporting and recordkeeping requirements, Rockets, Space transportation 
and exploration.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends parts 400, 401, 404, 405, 406, 413, and 415, of 
Chapter III Title 14, Code of Federal Regulations and adds parts 431, 
433 and 435 as follows:

PART 400--BASIS AND SCOPE

    1. The authority citation for part 400 is revised to read as 
follows:

    Authority: 49 U.S.C. 70101-70121.

    2. Section 400.2 is revised to read as follows:


Sec. 400.2  Scope.

    These regulations set forth the procedures and requirements 
applicable to the authorization and supervision under 49 U.S.C. 
Subtitle IX, chapter 701, of commercial space transportation activities 
conducted in the United States or by a U.S. citizen. The regulations in 
this chapter do not apply to amateur rocket activities or to space 
activities carried out by the United States Government on behalf of the 
United States Government.

PART 401--ORGANIZATION AND DEFINITIONS

    3. The authority citation for part 401 is revised to read as 
follows:

    Authority: 49 U.S.C. 70101-70121.

    4. Section 401.5 is revised to read as follows:


Sec. 401.5  Definitions.

    As used in this chapter--
    Act means 49 U.S.C. Subtitle IX, Commercial Space Transportation, 
ch. 701--Commercial Space Launch Activities, 49 U.S.C. 70101-70121.
    Amateur rocket activities means launch activities conducted at 
private sites involving rockets powered by a motor or motors having a 
total impulse of 200,000 pound-seconds or less and a total burning or 
operating time of less than 15 seconds, and a rocket having a ballistic 
coefficient-i.e., gross weight in pounds divided by frontal area of 
rocket vehicle-less than 12 pounds per square inch.
    Associate Administrator means the Associate Administrator for 
Commercial Space Transportation, Federal Aviation Administration, or 
any person designated by the Associate Administrator to exercise the 
authority or discharge the responsibilities of the Associate 
Administrator.
    Contingency abort means cessation of vehicle flight during ascent 
or descent in a manner that does not jeopardize public health and 
safety and the safety of property, in accordance with mission rules and 
procedures. Contingency abort includes landing at an alternative 
location that has been designated as a contingency abort location in 
advance of vehicle flight.
    Emergency abort means cessation of vehicle flight during ascent or 
descent in a manner that minimizes risk to public health and safety and 
the safety of property. Emergency abort involves failure of a vehicle, 
safety-critical system, or flight safety system such that contingency 
abort is not possible.
    Federal launch range means a launch site, from which launches 
routinely take place, that is owned and operated by the government of 
the United States.
    Flight safety system means a system designed to limit or restrict 
the hazards to public health and safety and the safety of property 
presented by a launch vehicle or reentry vehicle while in flight by 
initiating and accomplishing a controlled ending to vehicle flight. A 
flight safety system may be destructive resulting in intentional break 
up of a vehicle or nondestructive, such as engine thrust termination 
enabling vehicle landing or safe abort capability.
    Hazardous materials means hazardous materials as defined in 49 CFR 
172.101.
    Launch means to place or try to place a launch vehicle or reentry 
vehicle and any payload from Earth in a suborbital trajectory, in Earth 
orbit in outer space, or otherwise in outer space, and includes 
activities involved in the preparation of a launch vehicle for flight, 
when those activities take place at a launch site in the United States. 
The term launch includes the flight of a launch vehicle and pre-flight 
ground operations beginning with the arrival of a launch vehicle or 
payload at a U.S. launch site. For purposes of an ELV launch, flight 
ends after the licensee's last exercise of control over its launch 
vehicle. For purposes of an orbital RLV launch, flight ends after 
deployment of a payload for an RLV having payload deployment as a 
mission objective. For other orbital RLVs, flight ends upon completion 
of the first sustained, steady-state orbit of an RLV at its intended 
location.
    Launch accident means
    (1) A fatality or serious injury (as defined in 49 CFR 830.2) to 
any person who is not associated with the flight;
    (2) Any damage estimated to exceed $25,000 to property not 
associated with the flight that is not located at the launch site or 
designated recovery area.
    (3) An unplanned event occurring during the flight of a launch 
vehicle resulting in the known impact of a launch vehicle, its payload 
or any component thereof:
    (i) For an expendable launch vehicle (ELV), outside designated 
impact limit lines; and
    (ii) For an RLV, outside a designated landing site.
    Launch incident means an unplanned event occurring during the 
flight of a launch vehicle, other than a launch accident, involving a 
malfunction of a flight safety system or safety-critical system or 
failure of the licensee's safety organization, design or operations.
    Launch operator means a person who conducts or who will conduct the 
launch of a launch vehicle and any payload.
    Launch site means the location on Earth from which a launch takes 
place (as defined in a license the Secretary issues or transfers under 
this chapter) and necessary facilities at that location.
    Launch vehicle means a vehicle built to operate in, or place a 
payload in, outer space or a suborbital rocket.
    Mishap means a launch or reentry accident, launch or reentry 
incident, failure to complete a launch or reentry as planned, or an 
unplanned event or series of events resulting in a fatality or serious 
injury (as defined in 49 CFR 830.2), or resulting in greater than 
$25,000 worth of damage to a payload, a launch or reentry vehicle, a 
launch or reentry support facility or government property located on 
the launch or reentry site.
    Operation of a launch site means the conduct of approved safety 
operations at a permanent site to support the launching of vehicles and 
payloads.
    Operation of a reentry site means the conduct of safety operations 
at a permanent site on Earth at which a reentry vehicle and its 
payload, if any, is intended to land.
    Payload means an object that a person undertakes to place in outer 
space by means of a launch vehicle, including components of the vehicle 
specifically designed or adapted for that object.
    Person means an individual or an entity organized or existing under 
the laws of a state or country.

[[Page 56657]]

    Reenter; reentry means to return or attempt to return, 
purposefully, a reentry vehicle and its payload, if any, from Earth 
orbit or from outer space to Earth. The term ``reenter; reentry'' 
includes activities conducted in Earth orbit or outer space to 
determine reentry readiness and that are critical to ensuring public 
health and safety and the safety of property during reentry flight. The 
term ``reenter; reentry'' also includes activities conducted on the 
ground after vehicle landing on Earth to ensure the reentry vehicle 
does not pose a threat to public health and safety or the safety of 
property.
    Reentry accident means any unplanned event occurring during the 
reentry of a reentry vehicle resulting in the known impact of the 
reentry vehicle, its payload, or any component thereof outside a 
designated reentry site; a fatality or serious injury (as defined in 49 
CFR 830.2) to any person who is not associated with the reentry; or any 
damage estimated to exceed $25,000 to property not associated with the 
reentry and not located within a designated reentry site.
    Reentry incident means any unplanned event occurring during the 
reentry of a reentry vehicle, other than a reentry accident, involving 
a malfunction of a reentry safety-critical system or failure of the 
licensee's safety organization, procedures, or operations.
    Reentry operator means a person responsible for conducting the 
reentry of a reentry vehicle as specified in a license issued by the 
FAA.
    Reentry site means the location on Earth where a reentry vehicle is 
intended to return. It includes the area within three standard 
deviations of the intended landing point (the predicted three-sigma 
footprint).
    Reentry vehicle means a vehicle designed to return from Earth orbit 
or outer space to Earth substantially intact. A reusable launch vehicle 
that is designed to return from Earth orbit or outer space to Earth 
substantially intact is a reentry vehicle.
    Reusable launch vehicle (RLV) means a launch vehicle that is 
designed to return to Earth substantially intact and therefore may be 
launched more than one time or that contains vehicle stages that may be 
recovered by a launch operator for future use in the operation of a 
substantially similar launch vehicle.
    Safety-critical means essential to safe performance or operation. A 
safety-critical system, subsystem, condition, event, operation, process 
or item is one whose proper recognition, control, performance or 
tolerance is essential to system operation such that it does not 
jeopardize public safety.
    Vehicle safety operations personnel means those persons whose job 
performance is critical to public health and safety or the safety of 
property during RLV or reentry operations.
    State and United States means, when used in a geographical sense, 
the several States, the District of Columbia, the Commonwealth of 
Puerto Rico, American Samoa, the United States Virgin Islands, Guam, 
and any other commonwealth, territory, or possession of the United 
States; and
    United States citizen means:
    (1) Any individual who is a citizen of the United States;
    (2) Any corporation, partnership, joint venture, association, or 
other entity organized or existing under the laws of the United States 
or any State; and
    (3) Any corporation, partnership, joint venture, association, or 
other entity which is organized or exists under the laws of a foreign 
nation, if the controlling interest in such entity is held by an 
individual or entity described in paragraph (1) or (2) of this 
definition. Controlling interest means ownership of an amount of equity 
in such entity sufficient to direct management of the entity or to void 
transactions entered into by management. Ownership of at least fifty-
one percent of the equity in an entity by persons described in 
paragraph (1) or (2) of this definition creates a rebuttable 
presumption that such interest is controlling.

PART 404--REGULATIONS AND LICENSING REQUIREMENTS

    5. The authority citation for part 404 is revised to read as 
follows:

    Authority: 49 U.S.C. 70101-70121.


    6. Section 404.1 is revised to read as follows:


Sec. 404.1  Scope.

    Under 49 U.S.C. 70105, this part establishes procedures for issuing 
regulations to implement the provisions of 49 U.S.C. Subtitle IX, 
chapter 701, and for eliminating or waiving requirements of Federal law 
otherwise applicable to the licensing of commercial space 
transportation activities under 49 U.S.C. Subtitle IX, chapter 701.

    7. Section 404.3 is amended by revising the heading and paragraph 
(a) to read as follows:


Sec. 404.3  Filing of petitions to the Associate Administrator.

    (a) Any person may petition the Associate Administrator to issue, 
amend, or repeal a regulation to eliminate as a requirement for a 
license any requirement of Federal law applicable to commercial space 
launch and reentry activities and the operation of launch and reentry 
sites or to waive any such requirement in the context of a specific 
application for a license.
* * * * *

PART 405--INVESTIGATIONS AND ENFORCEMENT

    8. The authority citation for part 405 is revised to read as 
follows:

    Authority: 49 U.S.C. 70101-70121.


    9. Section 405.1 is revised to read as follows:


Sec. 405.1  Monitoring of licensed and other activities.

    Each licensee must allow access by and cooperate with Federal 
officers or employees or other individuals authorized by the Associate 
Administrator to observe licensed facilities and activities, including 
launch sites and reentry sites, as well as manufacturing, production, 
and testing facilities, or assembly sites used by any contractor or a 
licensee in the production, assembly, or testing of a launch or reentry 
vehicle and in the integration of a payload with its launch or reentry 
vehicle. Observations are conducted to monitor the activities of the 
licensee or contractor at such time and to such extent as the Associate 
Administrator considers reasonable and necessary to determine 
compliance with the license or to perform the Associate Administrator's 
responsibilities pertaining to payloads for which no Federal license, 
authorization, or permit is required.

    10. Section 405.5 is amended by revising the introductory text and 
paragraph (a) to read as follows:


Sec. 405.5  Emergency orders.

    The Associate Administrator may immediately terminate, prohibit, or 
suspend a licensed launch, reentry, or operation of a launch or reentry 
site if the Associate Administrator determines that--
    (a) The licensed launch, reentry, or operation of a launch or 
reentry site is detrimental to public health and safety, the safety of 
property, or any national security or foreign policy interest of the 
United States; and
* * * * *

PART 406--ADMINISTRATIVE REVIEW

    11. The authority citation for part 406 is revised to read as 
follows:

    Authority: 49 U.S.C. 70101-70121


[[Page 56658]]



    12. Section 406.1 is amended by revising paragraphs (a), 
introductory text, (a)(2), and (a)(3) to read as follows:


Sec. 406.1  Hearings.

    (a) Pursuant to 49 U.S.C. 70110, the following are entitled to a 
determination on the record after an opportunity for a hearing in 
accordance with 5 U.S.C. 554.
    (1) * * *
    (2) An owner or operator of a payload regarding any decision to 
prevent the launch or reentry of the payload;
    (3) A licensee regarding any decision to suspend, modify, or revoke 
a license or to terminate, prohibit, or suspend any licensed activity; 
and
* * * * *

PART 413--LICENSE APPLICATION PROCEDURES

    13. The authority citation for part 413 continues to read as 
follows:

    Authority: 49 U.S.C. 70101-70121

    14. Section 413.1 is revised to read as follows:


Sec. 413.1  Scope.

    This part prescribes the procedures applicable to applications 
submitted under this chapter to conduct licensed activities. These 
procedures apply to all applications for issuance of a license, 
transfer of an existing license, and renewal of an existing license. 
More specific requirements applicable to obtaining a launch license or 
a license to operate a launch site are contained in parts 415 and 417 
of this chapter, respectively. More specific requirements applicable to 
obtaining a license to launch and reenter a reentry vehicle or to 
operate a reentry site are contained in parts 431, 433 and 435 of this 
chapter.

    15. Section 413.3 is revised to read as follows:


Sec. 413.3  Who must obtain a license.

    (a) A person must obtain a license--
    (1) To launch a launch vehicle from the United States;
    (2) To operate a launch site within the United States;
    (3) To reenter a reentry vehicle in the United States; or
    (4) To operate a reentry site within the United States.
    (b) An individual who is a U.S. citizen or an entity organized 
under the laws of the United States or any State must obtain a 
license--
    (1) To launch a launch vehicle outside the United States;
    (2) To operate a launch site outside of the United States;
    (3) To reenter a reentry vehicle outside of the United States; or
    (4) To operate a reentry site outside of the United States.
    (c) A foreign entity in which a United States citizen has a 
controlling interest, as defined in Sec. 401.5 of this chapter, must 
obtain a launch license to launch a launch vehicle from or a license to 
operate a launch site within--
    (1) Any place that is both outside the United States and outside 
the territory of any foreign nation, unless there is an agreement in 
force between the United States and a foreign nation providing that 
such foreign nation shall exercise jurisdiction over the launch or the 
operation of the launch site; or
    (2) The territory of any foreign nation if there is an agreement in 
force between the United States and that foreign nation providing that 
the United States shall exercise jurisdiction over the launch or the 
operation of the launch site.
    (d) A foreign entity in which a U.S. citizen has a controlling 
interest, as defined in Sec. 401.5 of this chapter, must obtain a 
license to reenter a reentry vehicle or to operate a reentry site in--
    (1) Any place that is outside the United States and outside the 
territory of any foreign nation, unless there is an agreement in force 
between the United States and a foreign nation providing that such 
foreign nation shall exercise jurisdiction over the reentry or the 
operation of the reentry site; or
    (2) The territory of any foreign nation if there is an agreement in 
force between the United States and that foreign nation providing that 
the United States shall exercise jurisdiction over the reentry or the 
operation of the reentry site.

PART 415--LAUNCH LICENSE

    16. The authority citation for part 415 continues to read as 
follows:

    Authority: 49 U.S.C. 70101-70121

    17. Section 415.1 is revised to read as follows:


Sec. 415.1  Scope.

    This part prescribes requirements for obtaining a license to launch 
a launch vehicle, other than a reusable launch vehicle (RLV), and post-
licensing requirements with which a licensee shall comply to remain 
licensed. Requirements for preparing a license application are 
contained in part 413 of this subchapter. Requirements for obtaining a 
license to launch an RLV and conduct an RLV mission are contained in 
part 431 of this subchapter.

    18. Part 431 is added to read as follows:

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

Subpart A--General
Sec.
431.1  Scope.
431.3  Types of reusable launch vehicle mission licenses.
431.5  Policy and safety approvals.
431.7  Payload and payload reentry determinations.
431.9  Issuance of a reusable launch vehicle mission license.
431.11  Additional license terms and conditions.
431.13  Transfer of a reusable launch vehicle mission license.
431.15  Rights not conferred by a reusable launch vehicle mission 
license.
431.16-431.20  [Reserved]
Subpart B--Policy Review and Approval for Launch and Reentry of a 
Reusable Launch Vehicle
431.21  General.
431.23   Policy review.
431.25  Application requirements for policy review.
431.27   Denial of policy approval.
431.28-431.30   [Reserved]
Subpart C--Safety Review and Approval for Launch and Reentry of a 
Reusable Launch Vehicle
431.31  General.
431.33  Safety organization.
431.35  Acceptable reusable launch vehicle mission risk.
431.37  Mission readiness.
431.39  Mission rules, procedures, contingency plans, and 
checklists.
431.41  Communications plan.
431.43  Reusable launch vehicle mission operational requirements and 
restrictions.
431.45  Mishap investigation plan and emergency response plan.
431.47  Denial of safety approval.
431.48-431.50  [Reserved]
Subpart D--Payload Reentry Review and Determination
431.51  General.
431.53  Classes of payloads.
431.55  Payload reentry review.
431.57  Information requirements for payload reentry review.
431.59  Issuance of payload reentry determination.
431.61  Incorporation of payload reentry determination in license 
application.
431.62-431.70  [Reserved]
Subpart E--Post-Licensing Requirements-Reusable Launch Vehicle Mission 
License Terms and Conditions
431.71  Public safety responsibility.
431.73  Continuing accuracy of license application; application for 
modification of license.
431.75  Agreements.
431.77  Records.
431.79  Reusable launch vehicle mission reporting requirements.

[[Page 56659]]

431.81  Financial responsibility requirements.
431.83  Compliance monitoring.
431.85  Registration of space objects.
431.86-431.90  [Reserved]
Subpart F--Environmental Review
431.91  General.
431.93  Environmental information.

    Authority: 49 U.S.C. 70101-70121

Subpart A--General


Sec. 431.1  Scope.

    This part prescribes requirements for obtaining a reusable launch 
vehicle (RLV) mission license and post-licensing requirements with 
which a licensee must comply to remain licensed. Requirements for 
preparing a license application are contained in part 413 of this 
subchapter.


Sec. 431.3  Types of reusable launch vehicle mission licenses.

    (a) Mission-specific license. A mission-specific license 
authorizing an RLV mission authorizes a licensee to launch and reenter, 
or otherwise land, one model or type of RLV from a launch site approved 
for the mission to a reentry site or other location approved for the 
mission. A mission-specific license authorizing an RLV mission may 
authorize more than one RLV mission and identifies each flight of an 
RLV authorized under the license. A licensee's authorization to conduct 
RLV missions terminates upon completion of all activities authorized by 
the license or the expiration date stated in the reentry license, 
whichever occurs first.
    (b) Operator license. An operator license for RLV missions 
authorizes a licensee to launch and reenter, or otherwise land, any of 
a designated family of RLVs within authorized parameters, including 
launch sites and trajectories, transporting specified classes of 
payloads to any reentry site or other location designated in the 
license. An operator license for RLV missions is valid for a two-year 
renewable term.


Sec. 431.5  Policy and safety approvals.

    To obtain either type of RLV mission license, an applicant must 
obtain policy and safety approvals from the FAA. Requirements for 
obtaining these approvals are contained in subparts B and C of this 
part. Only the license applicant may apply for the approvals, and may 
apply for either approval separately and in advance of submitting a 
complete license application, using the application procedures 
contained in part 413 of this subchapter.


Sec. 431.7  Payload and payload reentry determinations.

    (a) A payload determination is required to launch a payload unless 
the proposed payload is exempt from payload review under Sec. 415.53 of 
this chapter. Requirements for obtaining a payload determination are 
set forth in part 415, subpart D of this chapter.
    (b) A payload reentry determination is required to reenter a 
payload to Earth on an RLV unless the proposed payload is exempt from 
payload reentry review.
    (c) A payload reentry determination made under a previous license 
application under this subchapter may satisfy the requirements of 
paragraph (b) of this section.
    (d) The FAA conducts a review, as described in subpart D of this 
part, to make a payload reentry determination. Either an RLV mission 
license applicant or a payload owner or operator may request a review 
of the proposed payload using the application procedures contained in 
part 413 of thissubchapter. Upon receipt of an application, the FAA may 
conduct a payload reentry review independently of an RLV mission 
license application.


Sec. 431.9  Issuance of a reusable launch vehicle mission license.

    (a) The FAA issues either a mission-specific or operator license 
authorizing RLV missions to an applicant who has obtained all approvals 
and determinations required under this chapter for the license.
    (b) An RLV mission license authorizes a licensee to launch and 
reenter, or otherwise land, an RLV and payload, if any, in accordance 
with the representations contained in the licensee's application, 
subject to the licensee's compliance with terms and conditions 
contained in license orders accompanying the license, including 
financial responsibilityrequirements.


Sec. 431.11  Additional license terms and conditions.

    The FAA may amend an RLV mission license at any time by modifying 
or adding license terms and conditions to ensure compliance with 49 
U.S.C. Subtitle IX, chapter 701, and applicable regulations.


Sec. 431.13  Transfer of a reusable launch vehicle mission license.

    (a) Only the FAA may transfer an RLV mission license.
    (b) An applicant for transfer of an RLV mission license shall 
submit a license application in accordance with part 413 of this 
subchapter and satisfy the applicable requirements of this part. The 
FAA will transfer an RLV mission license to an applicant who has 
obtained all of the approvals and determinations required under this 
chapter for an RLV mission license. In conducting its reviews and 
issuing approvals and determinations, the FAA may incorporate any 
findings made part of the record to support the initial licensing 
determination. The FAA may modify an RLV mission license to reflect any 
changes necessary as a result of a license transfer.


Sec. 431.15  Rights not conferred by a reusable launch vehicle mission 
license.

    Issuance of an RLV mission license does not relieve a licensee of 
its obligation to comply with requirements of law that may apply to its 
activities.


Secs. 431.16-431.20  [Reserved]

Subpart B--Policy Review and Approval for Launch and Reentry of a 
Reusable Launch Vehicle


Sec. 431.21  General.

    The FAA issues a policy approval to an RLV mission license 
applicant upon completion of a favorable policy review. A policy 
approval is part of the licensing record on which the licensing 
determination is based.


Sec. 431.23  Policy review.

    (a) The FAA reviews an RLV mission license application to determine 
whether the proposed mission presents any issues, other than those 
issues addressed in the safety review, that would adversely affect U.S. 
national security or foreign policy interests, would jeopardize public 
health and safety or the safety of property, or would not be consistent 
with international obligations of the United States.
    (b) Interagency consultation is conducted as follows:
    (1) The FAA consults with the Department of Defense to determine 
whether an RLV mission license application presents any issues 
adversely affecting U.S. nationalsecurity.
    (2) The FAA consults with the Department of State to determine 
whether an RLV mission license application presents any issues 
adversely affecting U.S. foreign policy interests or international 
obligations.
    (3) The FAA consults with other Federal agencies, including the 
National Aeronautics and Space Administration, authorized to address 
issues identified under paragraph (a) of this section, associated with 
an applicant's RLV mission proposal.
    (c) The FAA advises an applicant, in writing, of any issueraised 
during a policy review that would impede issuance of a policy approval. 
The

[[Page 56660]]

applicant may respond, in writing, or revise its license application.


Sec. 431.25  Application requirements for policy review.

    In its RLV mission license application, an applicant must--
    (a) Identify the model, type, and configuration of any RLV proposed 
for launch and reentry, or otherwise landing on Earth, by the 
applicant.
    (b) Identify all vehicle systems, including structural, thermal, 
pneumatic, propulsion, electrical, and avionics and guidance systems 
used in the vehicle(s), and all propellants.
    (c) Identify foreign ownership of the applicant as follows:
    (1) For a sole proprietorship or partnership, identify all foreign 
ownership;
    (2) For a corporation, identify any foreign ownership interests of 
10% or more; and
    (3) For a joint venture, association, or other entity, identify any 
participating foreign entities.
    (d) Identify proposed launch and reentry flight profile(s), 
including--
    (1) Launch and reentry site(s), including planned contingency abort 
locations, if any;
    (2) Flight trajectories, reentry trajectories, associated ground 
tracks, and instantaneous impact points for nominal operations, and 
contingency abort profiles, if any;
    (3) Sequence of planned events or maneuvers during the mission; and 
for an orbital mission, the range of intermediate and final orbits of 
the vehicle and upper stages, if any, and their estimated orbital life 
times.


Sec. 431.27  Denial of policy approval.

    The FAA notifies an applicant, in writing, if the FAA hasdenied 
policy approval for an RLV mission license application. The notice 
states the reasons for the FAA's determination. The applicant may 
respond to the reasons for the determination and request 
reconsideration.


Secs. 431.28-431.30  [Reserved]

Subpart C--Safety Review and Approval for Launch and Reentry of a 
Reusable Launch Vehicle


Sec. 431.31  General.

    (a) The FAA conducts a safety review to determine whether an 
applicant is capable of launching an RLV and payload, if any, from a 
designated launch site, and reentering the RLV and payload, if any, to 
a designated reentry site or location, or otherwise landing it on 
Earth, without jeopardizing public health and safety and the safety of 
property.
    (b) The FAA issues a safety approval to an RLV mission license 
applicant that satisfies the requirements of this Subpart. The FAA 
evaluates on an individual basis all public safety aspects of a 
proposed RLV mission to ensure they are sufficient to support safe 
conduct of the mission.A safety approval is part of the licensing 
record on which the FAA's licensing determination is based.
    (c) The FAA advises an applicant, in writing, of any issueraised 
during a safety review that would impede issuance of a safety approval. 
The applicant may respond, in writing, or revise its license 
application.


Sec. 431.33  Safety organization.

    (a) An applicant shall maintain a safety organization and document 
it by identifying lines of communication and approval authority for all 
mission decisions that may affect public safety. Lines of communication 
within the applicant's organization, between the applicant and the 
launch site, and between the applicant and the reentry site,shall be 
employed to ensure that personnel perform RLV mission operations in 
accordance with plans and proceduresrequired by this subpart. Approval 
authority shall beemployed to ensure compliance with terms and 
conditionsstated in an RLV mission license and with the plans and 
procedures required by this subpart.
    (b) An applicant must designate a person responsible for the 
conduct of all licensed RLV mission activities.
    (c) An applicant shall designate by name, title, and 
qualifications, a qualified safety official authorized by the applicant 
to examine all aspects of the applicant's operations with respect to 
safety of RLV mission activities and to monitor independently 
compliance by vehicle safety operations personnel with the applicant's 
safety policies and procedures. The safety official shallreport 
directly to the person responsible for an applicant's licensed RLV 
mission activities, who shall ensure that all of the safety official's 
concerns are addressed both before a mission is initiated and before 
reentry or descent flight of an RLV is initiated. The safety official 
is responsible for--
    (1) Monitoring and evaluating operational dress rehearsals to 
ensure they are conducted in accordance with proceduresrequired by 
Sec. 431.37(a)(4) and under Sec. 431.37(a)(1)(iv) to ensure the 
readiness of vehiclesafety operations personnel to conduct a safe 
mission under nominal and non-nominal conditions; and
    (2) Completing a mission readiness determination as required by 
Sec. 431.37 before an RLV mission is initiated. The safety official 
must monitor and report to the person responsible for the conduct of 
licensed RLV mission activities any non-compliance with procedures 
listed in Secs. 431.37 and 431.43, or any representation contained in 
the application, and the readiness of the licensee to conduct mission 
operations in accordance with the license and this part. The safety 
official is responsible for compliance with Secs. 431.37 and 431.43, 
and with representations contained in the application.


Sec. 431.35  Acceptable reusable launch vehicle mission risk.

    (a) To obtain safety approval for an RLV mission, an applicant must 
demonstrate that the proposed mission does not exceed acceptable risk 
as defined in this subpart. For purposes of this section, the mission 
commences upon initiation of the launch phase of flight and consists of 
launch flight through orbital insertion of an RLV or vehiclestage or 
flight to outer space, whichever is applicable, and reentry or descent 
flight, and concludes upon landing on Earth of the RLV.
    (b) Acceptable risk for a proposed mission is measured in terms of 
the expected average number of casualties (Ec).
    (1) To obtain safety approval, an applicant shalldemonstrate:
    (i) For public risk, the risk level to the collective members of 
the public exposed to vehicle or vehicle debris impact hazards 
associated with a proposed mission does notexceed an expected average 
number of 0.00003 casualties per mission (or Ec criterion of 
30  x  10-6) to members of the public from the applicant's 
proposed activity; and
    (ii) For public risk, the risk level to an individual does not 
exceed .000001 per mission (or individual risk criterion of 1  x  
10-6).
    (c) To demonstrate compliance with acceptable risk criteria in 
thissection, an applicant shall employ a system safety process to 
identify the hazards and assess the risks to publichealth and safety 
and the safety of property associated with the mission, including 
nominal and non-nominal operation and flight of the vehicle and 
payload, if any. An acceptablesystem safety analysis identifies and 
assesses the probability and consequences of any reasonably 
foreseeablehazardous event, and safety-critical system failures during 
launch flight or reentry that could result in a casualty to the public.

[[Page 56661]]

    (d) As part of the demonstration required under paragraph (c) of 
this section, an applicant must--
    (1) Identify and describe the structure of the RLV, including 
physical dimensions and weight;
    (2) Identify and describe any hazardous materials, including 
radioactive materials, and their container on the RLV;
    (3) Identify and describe safety-critical systems;
    (4) Identify and describe all safety-critical failure modes and 
their consequences;
    (5) Provide drawings and schematics for each
    safety-critical system identified under paragraph (d) (3) of this 
section;
    (6) Provide a timeline identifying all safety-critical
    events;
    (7) Provide data that validates the applicant's system safety 
analyses required in paragraph (c) of this section; and
    (8) Provide flight trajectory analyses covering launch or ascent of 
the vehicle through orbital insertion and reentry or descent of the 
vehicle through landing, including its three-sigma dispersion.


Sec. 431.37  Mission readiness.

    (a) Mission readiness requirements. An applicant shall submit the 
following procedures for verifying mission readiness:
    (1) Mission readiness review procedures that involve the 
applicant's vehicle safety operations personnel, and launch site and 
reentry site personnel involved in the mission. The procedures shall 
ensure a mission readiness review is conducted during which the 
designated individual responsible for the conduct of licensed 
activities under Sec. 431.33(b) is provided with the following 
information to make a judgment as to mission readiness--
    (i) Readiness of the RLV including safety-critical systems and 
payload for launch and reentry flight;
    (ii) Readiness of the launch site, personnel, and safety-related 
launch property and launch services to be provided by the launch site;
    (iii) Readiness of the reentry site, personnel, and safety-related 
property and services for reentry flight and vehicle recovery;
    (iv) Readiness of vehicle safety operations personnel to support 
mission flight, including results of dress rehearsals and simulations 
conducted in accordance with paragraph (a)(4) of this section;
    (v) Mission rules and constraints, including contingency abort 
plans and procedures, if any, as required under Sec. 431.39;
    (vi) Unresolved safety issues identified during the mission 
readiness review and plans for addressing them; and
    (vii) Any additional safety information required by the individual 
designated under Sec. 431.33(b) to determine launch and reentry 
readiness.
    (2) Procedures that ensure mission constraints, rules, contingency 
abort and emergency abort procedures are listed and consolidated in a 
safety directive or notebook approved by the person designated by the 
applicant under Sec. 431.33(b), the launch site operator, and the 
reentry site operator, if any;
    (3) Procedures that ensure currency and consistency of licensee, 
launch site operator, and reentry site operator checklists;
    (4) Dress rehearsal procedures that--
    (i) Ensure crew readiness under nominal and non-nominal flight 
conditions;
    (ii) Contain criteria for determining whether to dispense with or 
add one or more dress rehearsals; and
    (iii) Verify currency and consistency of licensee, launch site 
operator, and reentry site operator checklists; and
    (5) Procedures for ensuring the licensee's vehicle safety 
operations personnel adhere to crew rest rules of this part.
    (b) [Reserved]


Sec. 431.39  Mission rules, procedures, contingency plans, and 
checklists.

    (a) An applicant shall submit mission rules, procedures, 
checklists, emergency plans, and contingency abort plans, if any, that 
ensure safe conduct of mission operations during nominal and non-
nominal vehicle flight.
    (b) Mission rules, procedures, checklists, emergency plans, and 
contingency abort plans must be contained in a safety directive, 
notebook, or other compilation that is approved by the safety official 
designated under Sec. 431.33(c) and concurred in by the launch site 
operator and reentry site operator, if any.
    (c) Vehicle safety operations personnel must have current and 
consistent mission checklists.


Sec. 431.41  Communications plan.

    (a) An applicant shall submit a plan providing vehicle safety 
operations personnel communications procedures during the mission. 
Procedures for effective issuance and communication of safety-critical 
information during the mission shall include hold/resume, go/no go, 
contingency abort, if any, and emergency abort commands by vehicle 
safety operations personnel. The communications plan shall describe the 
authority of vehicle safety operations personnel, by individual or 
position title, to issue these commands. The communications plan shall 
ensure that--
    (1) Communication networks are assigned so that personnel 
identified under this section have direct access to real-time, safety-
critical information required for making decisions and issuing 
commands;
    (2) Personnel identified under this section monitor a common 
intercom channel for safety-critical communications during launch and 
reentry;
    (3) A protocol is established for utilizing defined radio 
communications terminology; and
    (4) Communications affecting the safety of the mission are recorded 
in a manner that accurately reflects communications made on individual 
channels, synchronized time coding, and sequence of communications.
    (b) An applicant shall submit procedures to ensure that licensee 
and reentry site personnel, if any, receive a copy of the 
communications plan required by this section and that the reentry site 
operator, if any, concurs with the communications plan.


Sec. 431.43  Reusable launch vehicle mission operational requirements 
and restrictions.

    (a) An applicant for RLV mission safety approval shall submit 
procedures--
    (1) That ensure RLV mission risks do not exceed the criteria set 
forth in Sec. 431.35 for nominal and non-nominal operations;
    (2) That ensure conformance with the system safety process and 
associated hazard identification and risk assessment required under 
Sec. 431.35(c);
    (3) That ensure conformance with operational restrictions listed in 
paragraphs (c) through (e) of this section;
    (4) To monitor and verify the status of RLV safety-critical systems 
sufficiently before enabling both launch and reentry flight to ensure 
public safety and during mission flight unless technically infeasible; 
and
    (5) For human activation or initiation of a flight safety system 
that safely aborts the launch of an RLV if the vehicle is not operating 
within approved mission parameters and the vehicle poses risk to public 
health and safety and the safety of property in excess of acceptable 
flight risk as defined in Sec. 431.35.
    (b) To satisfy risk criteria set forth in Sec. 431.35(b)(1), an 
applicant for RLV mission safety approval shall identify suitable and 
attainable locations for

[[Page 56662]]

nominal landing and vehicle staging impact or landing, if any. An 
application shall identify such locations for a contingency abort if 
necessary to satisfy risk criteria contained in Sec. 431.35(b)(1) 
during launch of an RLV. A nominal landing, vehicle staging impact and 
contingency abort location are suitable for launch or reentry if--
    (1) For any vehicle or vehicle stage, the area of the predicted 
three-sigma dispersion of the vehicle or vehicle stage can be wholly 
contained within the designated location; and
    (2) The location is of sufficient size to contain landing impacts, 
including debris dispersion upon impact and any toxic release.
    (c) For an RLV mission--
    (1) A collision avoidance analysis shall be performed in order to 
maintain at least a 200-kilometer separation from any inhabitable 
orbiting object during launch and reentry. The analysis shall address:
    (i) For launch, closures in a planned launch window for ascent to 
outer space or, for an orbital RLV, to initial orbit through at least 
one complete orbit;
    (ii) For reentry, the reentry trajectory;
    (iii) Expansions of the closure period by subtracting 15 seconds 
from the closure start-time and adding 15 seconds to the closure end-
time for each sequential 90 minutes elapsed time period, or portion 
there of, beginning at the time the state vectors of the orbiting 
objects were determined;
    (2) The projected instantaneous impact point (IIP) of the vehicle 
shall not have substantial dwell time over densely populated areas 
during any segment of mission flight;
    (3) There will be no unplanned physical contact between the vehicle 
or its components and payload after payload separation and debris 
generation will not result from conversion of energy sources into 
energy that fragments the vehicle or its payload. Energy sources 
include, but are not limited to, chemical, pneumatic, and kinetic 
energy; and
    (4) Vehicle safety operations personnel shall adhere to the 
following work and rest standards:
    (i) A maximum 12-hour work shift with at least 8 hours of rest 
after 12 hours of work, preceding initiation of an RLV reentry mission 
or during the conduct of a mission;
    (ii) A maximum of 60 hours worked in the 7 days, preceding 
initiation of an RLV mission;
    (iii) A maximum of 14 consecutive work days; and
    (iv) A minimum 48-hour rest period after 5 consecutive days of 12-
hour shifts.
    (d) In addition to requirements of paragraph (c) of this section, 
any unproven RLV may only be operated so that during any portion of 
flight--
    (1) The projected instantaneous impact point (IIP) of the vehicle 
does not have substantial dwell time over populated areas; or
    (2) The expected average number of casualties to members of the 
public does not exceed 30  x  10-6 (Ec 
 30  x  10-6) given a probability of vehicle 
failure equal to 1 (pf=1) at any time the IIP is over a populated area;
    (e) Any RLV that enters Earth orbit may only be operated such that 
the vehicle operator is able to--
    (1) Monitor and verify the status of safety-critical systems before 
enabling reentry flight to assure the vehicle can reenter safely to 
Earth; and
    (2) Issue a command enabling reentry flight of the vehicle. Reentry 
flight cannot be initiated autonomously under nominal circumstances 
without prior enable.


Sec. 431.45  Mishap investigation plan and emergency response plan.

    (a) Mishap investigation plan and emergency response plan. An 
applicant shall submit a mishap investigation plan (MIP) containing the 
applicant's procedures for reporting and responding to launch and 
reentry accidents, launch and reentry incidents, or other mishaps, as 
defined in Sec. 401.5 of this chapter, that occur during the conduct of 
an RLV mission. An acceptable MIP satisfies the requirements of 
paragraphs (b)-(d) of this section. An applicant shall also submit an 
emergency response plan (ERP) that contains procedures for informing 
the affected public of a planned RLV mission. An acceptable ERP 
satisfies the requirements of paragraph (e) of this section. The MIP 
and ERP shall be signed by an individual authorized to sign and certify 
the application in accordance with Sec. 413.7(c) of this chapter, the 
person responsible for the conduct of all licensed RLV mission 
activities designated under Sec. 431.33(b) of this subpart, and the 
safety official designated under Sec. 431.33(c) of this subpart.
    (b) Report requirements. A MIP shall provide for--
    (1) Immediate notification to the FAA Washington Operations Center 
in case of a launch or reentry accident, launch or reentry incident, or 
a mishap that involves a fatality or serious injury (as defined in 49 
CFR 830.2);
    (2) Notification within 24 hours to the Associate Administrator for 
Commercial Space Transportation in the event of a mishap that does not 
involve a fatality or serious injury, as defined in 49 CFR 830.2; and
    (3) Submission of a written preliminary report to the FAA Associate 
Administrator for Commercial Space Transportation in the event of a 
launch accident or launch incident occurring in the conduct of an RLV 
mission, or reentry accident or reentry incident, occurring in the 
conduct of an RLV mission, within 5 days of the event. The report shall 
identify the event as either a launch or reentry accident or incident 
and must include the following information:
    (i) Date and time of occurrence;
    (ii) Description of the event and sequence of events leading to the 
accident or incident, to the extent known;
    (iii) Intended and actual location of launch and reentry or other 
landing on Earth;
    (iv) Identification of the vehicle;
    (v) Identification of the payload, if applicable;
    (vi) Number and general description of any fatalities and injuries;
    (vii) Property damage, if any, and an estimate of its value;
    (viii) Identification of hazardous materials, as defined in 
Sec. 401.5 of this chapter, involved in the event, whether on the 
vehicle, payload, or on the ground;
    (ix) Action taken by any person to contain the consequences of the 
event;
    (x) Weather conditions at the time of the event; and
    (xi) Potential consequences for other vehicles or systems of 
similar type and proposed operations.
    (c) Response plan. A MIP must contain procedures to--
    (1) Ensure the consequences of a launch accident, launch incident, 
reentry accident, reentry incident, or other mishap occurring in the 
conduct of an RLV mission are contained and minimized;
    (2) Ensure data and physical evidence are preserved;
    (3) Require the licensee to report and to cooperate with FAA and 
the National Transportation Safety Board investigations and designate 
one or more points of contact for the FAA or NTSB; and;
    (4) Require the licensee to identify and adopt preventive measures 
for avoiding recurrence of the event.
    (d) Investigation plan. A MIP shall contain--
    (1) Procedures for investigating the cause of an event described in 
paragraph (c)(1) of this section;
    (2) Procedures for reporting investigation results to the FAA;
    (3) Delineated responsibilities, including reporting 
responsibilities, for

[[Page 56663]]

personnel assigned to conduct investigations and for any unrelated 
entities retained by the licensee to conduct or participate in 
investigations.
    (e) Emergency response plan. An ERP shall provide for--
    (1) Notification to local officials in the event of an off-site or 
unplanned landing so that vehicle recovery can be conducted safely and 
effectively and with minimal risk to public safety. The plan must 
provide for the quick dissemination of up to date information to the 
public, and for doing so in advance of reentry or other landing on 
Earth to the extent practicable; and
    (2) A public information dissemination plan for informing the 
potentially affected public, in laymen's terms and in advance of a 
planned reentry, of the estimated date, time and landing location for 
the reentry activity.


Sec. 431.47  Denial of safety approval.

    The FAA notifies an applicant, in writing, if the FAA has denied 
safety approval for an RLV mission license application. The notice 
states the reasons for the FAA's determination. The applicant may 
respond to the reasons for the determination and request 
reconsideration.


Secs. 431.48-431.50  [Reserved]

Subpart D--Payload Reentry Review and Determination


Sec. 431.51  General.

    (a) A payload reentry review is conducted to examine the policy and 
safety issues related to the proposed reentry of a payload, other than 
a U.S. Government payload or a payload whose reentry is subject to 
regulation by another Federal agency, to determine whether the FAA will 
approve reentry of the payload.
    (b) A payload reentry review may be conducted as part of an RLV 
mission license application review or may be requested by a payload 
owner or operator in advance of or separate from an RLV mission license 
application.
    (c) A payload reentry determination will be made part of the 
licensing record on which the FAA's licensing determination is based.


Sec. 431.53  Classes of payloads.

    (a) The FAA may approve the return of a type or class of payload 
(for example, communications or microgravity/scientific satellites).
    (b) The RLV mission licensee that will return a payload approved 
for reentry under this section, is responsible for providing current 
information in accordance with Sec. 431.57 regarding the payload 
proposed for reentry no later than 60 days before a scheduled RLV 
mission involving that payload.


Sec. 431.55  Payload reentry review.

    (a) In conducting a payload reentry review to decide if the FAA 
should approve reentry of a payload, the FAA determines whether its 
reentry presents any issues that would adversely affect U.S. national 
security or foreign policy interests, would jeopardize public health 
and safety or the safety of property, or would not be consistent with 
international obligations of the United States.
    (b) The FAA consults with the Department of Defense to determine 
whether reentry of a proposed payload presents any issues adversely 
affecting U.S. national security.
    (c) The FAA consults with the Department of State to determine 
whether reentry of a proposed payload presents any issues adversely 
affecting U.S. foreign policy interests or international obligations.
    (d) The FAA consults with other Federal agencies, including the 
National Aeronautics and Space Administration, authorized to address 
issues identified under paragraph (a) of this section.
    (e) The FAA advises a person requesting a payload reentry 
determination, in writing, of any issue raised during a payload reentry 
review that would impede the issuance of a favorable determination to 
reenter that payload. The person requesting a payload reentry review 
may respond, in writing, or revise its application.


Sec. 431.57  Information requirements for payload reentry review.

    A person requesting reentry review of a particular payload or 
payload class must identify the following:
    (a) Payload name or class and function;
    (b) Physical characteristics, dimensions, and weight of the 
payload;
    (c) Payload owner and operator, if different from the person 
requesting the payload reentry review;
    (d) Type, amount, and container of hazardous materials, as defined 
in Sec. 401.5 of this chapter, and radioactive materials in the 
payload;
    (e) Explosive potential of payload materials, alone and in 
combination with other materials found on the payload or RLV during 
reentry;
    (f) Designated reentry site(s); and
    (g) Method for securing the payload on the RLV.


Sec. 431.59  Issuance of payload reentry determination.

    (a) The FAA issues a favorable payload reentry determination unless 
it determines that reentry of the proposed payload would adversely 
affect U.S. national security or foreign policy interests, would 
jeopardize public health and safety or the safety of property, or would 
not be consistent with international obligations of the United States. 
The FAA responds to any person who has requested a payload reentry 
review of its determination in writing. The notice states the reasons 
for the determination in the event of an unfavorable determination.
    (b) Any person issued an unfavorable payload reentry determination 
may respond to the reasons for the determination and request 
reconsideration.


Sec. 431.61  Incorporation of payload reentry determination in license 
application.

    A favorable payload reentry determination issued for a payload or 
class of payload may be included by an RLV mission license applicant as 
part of its application. Before the conduct of an RLV mission involving 
a payload approved for reentry, any change in information provided 
under Sec. 431.57 must be reported by the licensee in accordance with 
Sec. 413.17 of this chapter. The FAA determines whether a favorable 
payload reentry determination remains valid and may conduct an 
additional payload reentry review.


Secs. 431.62-431.70  [Reserved]

Subpart E--Post-Licensing Requirements--Reusable Launch Vehicle 
Mission License Terms and Conditions


Sec. 431.71  Public safety responsibility.

    (a) A licensee is responsible for ensuring the safe conduct of an 
RLV mission and for protecting public health and safety and the safety 
of property during the conduct of the mission.
    (b) A licensee must conduct a licensed RLV mission and perform RLV 
safety procedures in accordance with representations made in its 
license application. A licensee's failure to perform safety procedures 
in accordance with the representations made in the license application 
or comply with any license condition is sufficient basis for the 
revocation of a license or other appropriate nforcement action.


Sec. 431.73  Continuing accuracy of license application; application 
for modification of license.

    (a) A licensee is responsible for the continuing accuracy of 
representations contained in its application for the entire term of the 
license.

[[Page 56664]]

    (b) After a license has been issued, a licensee must apply to the 
FAA for modification of the license if--
    (1) The licensee proposes to conduct an RLV mission or perform a 
safety-critical operation in a manner not authorized by the license; or
    (2) Any representation contained in the license application that is 
material to public health and safety or the safety of property is no 
longer accurate and complete or does not reflect the licensee's 
procedures governing the actual conduct of an RLV mission. A change is 
material to public health and safety or the safety of property if it 
alters or affects the--
    (i) Mission rules, procedures, checklists, emergency plans, and 
contingency abort plans, if any, submitted in accordance with 
Sec. 431.39
    (ii) Class of payload;
    (iii) Type of RLV;
    (iv) Any safety-critical system;
    (v) Type and container of the hazardous material carried by the 
vehicle;
    (vi) Flight trajectory;
    (vii) Launch site or reentry site or other landing location; or
    (viii) Any safety system, policy, procedure, requirement, criteria, 
or standard.
    (c) An application to modify an RLV mission license must be 
prepared and submitted in accordance with part 413 of this chapter. The 
licensee must indicate any part of its license or license application 
that would be changed or affected by a proposed modification.
    (d) The FAA reviews determinations and approvals required by this 
chapter to determine whether they remain valid after submission of a 
proposed modification.
    (e) Upon approval of a modification, the FAA issues either a 
written approval to the licensee or a license order amending the 
license if a stated term or condition of the license is changed, added, 
or deleted. An approval has the full force and effect of a license 
order and is part of the licensing record.


Sec. 431.75  Agreements.

    (a) Launch and reentry site use agreements. Before conducting a 
licensed RLV mission using property and services of a Federal launch 
range or licensed launch or reentry site operator, a licensee or 
applicant shall enter into an agreement with the Federal launch range 
and/or licensed site operator that provides for access to and use of 
property and services required to support a licensed RLV mission or 
reentry and for public safety related operations and support. The 
agreement shall be in effect before any licensed RLV mission or 
reentry. A licensee shall comply with any requirements of the agreement 
that may affect public health and safety and the safety of property 
during the conduct of its licensed activity.
    (b) Agreements for notices to mariners and airmen. Unless otherwise 
addressed in agreements between a licensed launch site operator and the 
U.S. Coast Guard and the FAA, respectively, a licensee authorized to 
conduct an RLV mission using a launch site or reentry site other than a 
Federal launch range shall complete the following:
    (1) An agreement between the licensee and the local U.S. Coast 
Guard district to establish procedures for the issuance of a Notice to 
Mariners prior to a launch or reentry and other measures as the Coast 
Guard deems necessary to protect public health and safety; and
    (2) An agreement between the licensee and the FAA regional office 
having jurisdiction over the airspace through which a launch and 
reentry will take place, to establish procedures for the issuance of a 
Notice to Airmen prior to the conduct of a licensed launch or reentry 
and for closing of air routes during the respective launch and reentry 
windows and other measures deemed necessary by the FAA regional office 
in order to protect public health and safety.


Sec. 431.77  Records.

    (a) Except as specified in paragraph (b) of this section, a 
licensee shall maintain for 3 years all records, data, and other 
material necessary to verify that a licensed RLV mission is conducted 
in accordance with representations contained in the licensee's 
application.
    (b) In the event of a launch accident, reentry accident, launch 
incident or reentry incident, as defined in Sec. 401.5 of this chapter, 
a licensee shall preserve all records related to the event. Records 
must be retained until completion of any Federal investigation and the 
FAA advises the licensee that the records need not be retained. The 
licensee shall make all records required to be maintained under the 
regulations available to Federal officials for inspection and copying.


Sec. 431.79  Reusable launch vehicle mission reporting requirements.

    (a) Not less than 60 days before each RLV mission conducted under a 
license, a licensee shall provide the FAA with the following 
information:
    (1) Payload information in accordance with 14 CFR Sec. 415.59 of 
this chapter and Sec. 431.57; and
    (2) Flight information, including the vehicle, launch site, planned 
launch and reentry flight path, and intended landing sites including 
contingency abort sites.
    (3) Launch or reentry waivers, approved or pending, from a federal 
Federal range for at which the launch or reentry will take place, that 
are unique and may affect public safety.
    (b) Not later than 15 days before each licensed RLV mission, a 
licensee must notify the FAA, in writing, of the time and date of the 
intended launch and reentry or other landing on Earth of the RLV and 
may utilize the FAA/U.S. Space Command Launch Notification Form, 
contained in part 415, Appendix A, of this subchapter for doing so.
    (c) A licensee must report a launch accident, launch incident, 
reentry accident, reentry incident, or other mishap immediately to the 
FAA Washington Operations Center and provide a written preliminary 
report in the event of a launch accident, launch incident, reentry 
accident, or reentry incident, in accordance with the mishap 
investigation and emergency response plan submitted as part of its 
license application under Sec. 431.45.


Sec. 431.81  Financial responsibility requirements.

    A licensee under this part must comply with financial 
responsibility requirements specified in its license.


Sec. 431.83  Compliance monitoring.

    A licensee shall allow access by, and cooperate with, federal 
officers or employees or other individuals authorized by the FAA to 
observe any activities of the licensee, or of the licensee's 
contractors or subcontractors, associated with the conduct of a 
licensed RLV mission.


Sec. 431.85  Registration of space objects.

    (a) To assist the U.S. Government in implementing Article IV of the 
1975 Convention on Registration of Objects Launched into Outer Space, 
each licensee shall provide to the FAA the information required by 
paragraph (b) of this section for all objects placed in space by a 
licensed RLV mission, including an RLV and any components, except:
    (1) Any object owned and registered by the U.S. Government; and
    (2) Any object owned by a foreign entity.
    (b) For each object that must be registered in accordance with this 
section, a licensee shall submit the following information not later 
than thirty (30) days following the conduct of a licensed RLV mission :

[[Page 56665]]

    (1) The international designator of the space object(s);
    (2) Date and location of the RLV mission initiation;
    (3) General function of the space object; and
    (4) Final orbital parameters, including:
    (i) Nodal period;
    (ii) Inclination;
    (iii) Apogee; and
    (iv) Perigee.
    (c) A licensee shall notify the FAA when it removes an object that 
it has previously placed in space.


Secs. 431.86-431.90  [Reserved]

Subpart F--Environmental Review


Sec. 431.91  General.

    An applicant shall provide the FAA with sufficient information to 
analyze the environmental impacts associated with proposed operation of 
an RLV, including the impacts of anticipated activities to be performed 
at its reentry site. The information provided by an applicant must be 
sufficient to enable the FAA to comply with the requirements of the 
National Environmental Policy Act, 42 U.S.C. 4321 et seq., the Council 
on Environmental Quality Regulations for Implementing the Procedural 
Provisions of the National Environmental Policy Act, 40 CFR parts 1500-
1508, and the FAA's Procedures for Considering Environmental Impacts, 
FAA Order 1050.1D. Copies of FAA Order 1050.1D may be obtained from the 
Office of Environment and Energy, AEE-300, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591, 
(202) 267-3553. Copies of FAA Order 1050.1D may be inspected in the 
Rules Docket at the Federal Aviation Administration, Office of the 
Chief Counsel, AGC-200, Room 915G, 800 Independence Avenue SW., 
Washington, DC 20591 weekdays between 8:30 a.m. and 5:00 p.m.


Sec. 431.93  Environmental information.

    An applicant shall submit environmental information concerning--
    (a) A designated launch and reentry site, including contingency 
abort locations, if any, not covered by existing FAA or other Federal 
environmental documentation;
    (b) A proposed new RLV with characteristics falling measurably 
outside the parameters of existing environmental documentation;
    (c) A proposed reentry to an established reentry site involving an 
RLV with characteristics falling measurably outside the parameters of 
existing environmental impact statements covering that site;
    (d) A proposed payload that may have significant environmental 
impacts in the event of a reentry accident; and
    (e) Other factors as necessary to comply with the National 
Environmental Policy Act.

    19. Part 433 is added to read as follows:

PART 433--LICENSE TO OPERATE A REENTRY SITE

Subpart A--General

Sec.
433.1   General.
433.3   Issuance of a license to operate a reentry site.
433.5   Operational restrictions on a reentry site.
433.7   Environmental.
433.9   Environmental information.

    Authority: 49 U.S.C. 70101-70121


Sec. 433.1  General.

    The FAA evaluates on an individual basis an applicant's proposal to 
operate a reentry site.


Sec. 433.3  Issuance of a license to operate a reentry site.

    (a) The FAA issues a license to operate a reentry site when it 
determines that an applicant's operation of the reentry site does not 
jeopardize public health and safety, the safety of property, U.S. 
national security or foreign policy interests, or international 
obligations of the United States.
    (b) A license to operate a reentry site authorizes a licensee to 
operate a reentry site in accordance with the representations contained 
in the licensee's application, subject to the licensee's compliance 
with terms and conditions contained in any license order accompanying 
the license.


Sec. 433.5  Operational restrictions on a reentry site.

    A license to operate a reentry site authorizes the licensee to 
offer use of the site to support reentry of a reentry vehicle for which 
the three-sigma footprint of the vehicle upon reentry is wholly 
contained within the site.


Sec. 433.7  Environmental.

    An applicant shall provide the FAA with information for the FAA to 
analyze the environmental impacts associated with proposed operation of 
a reentry site. The information provided by an applicant must be 
sufficient to enable the FAA to comply with the requirements of the 
National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA), the 
Council on Environmental Quality Regulations for Implementing the 
Procedural Provisions of NEPA, 40 CFR Parts 1500-1508, and the FAA's 
Procedures for Consideration Environmental Impacts, FAA Order 1050.1D.


Sec. 433.9  Environmental information.

    An applicant shall submit environmental information concerning a 
proposed reentry site not covered by existing environmental 
documentation for purposes of assessing reentry impacts.

    20. Part 435 is added to read as follows:

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

Subpart A--General
Sec.
435.1   Scope.
435.3   Types of reentry licenses.
435.5   Policy and safety approvals.
435.7   Payload reentry determinations.
435.9   Issuance of a reentry license.
435.11   Additional license terms and conditions.
435.13   Transfer of a reentry license.
435.15   Rights not conferred by reentry license.
435.16-435.20   [Reserved]
Subpart B--Policy Review and Approval for Reentry of a Reentry Vehicle
435.21   General.
435.23   Policy review requirements and procedures.
435.24-435.30   [Reserved]
Subpart C--Safety Review and Approval for Reentry of a Reentry Vehicle
435.31   General.
435.33   Safety review requirements and procedures.
435.35   Acceptable reentry risk for reentry of a reentry vehicle.
435.36-435.40   [Reserved]
Subpart D--Payload Reentry Review and Determination
435.41   General.
435.43   Payload reentry review requirements and procedures.
435.44-435.50   [Reserved]
Subpart E--Post-Licensing Requirements--Reentry License Terms and 
Conditions
435.51   General.
435.52-435.60   [Reserved]
Subpart F--Environmental Review
435.61    General.
435.62-435.70   [Reserved]

    Authority: 49 U.S.C. 70101-70121

Subpart A--General


Sec. 435.1  Scope.

    This part prescribes requirements for obtaining a license to 
reenter a reentry vehicle other than a reusable launch vehicle (RLV), 
and post-licensing

[[Page 56666]]

requirements with which a licensee must comply to remain licensed. 
Requirements for preparing a license application are contained in part 
413 of this subchapter.


Sec. 435.3  Types of reentry licenses.

    (a) Reentry-specific license. A reentry-specific license authorizes 
a licensee to reenter one model or type of reentry vehicle, other than 
an RLV, to a reentry site or other location approved for the reentry. A 
reentry-specific license may authorize more than one reentry and 
identifieseach reentry authorized under the license. A licensee's 
authorization to reenter terminates upon completion of all activities 
authorized by the license or the expiration date stated in the reentry 
license, whichever occurs first.
    (b) Reentry-operator license. A reentry operator license authorizes 
a licensee to reenter any of a designated family of reentry vehicles, 
other than an RLV, within authorized parameters, including 
trajectories, transporting specified classes of payloads to any reentry 
site designated in the license. A reentry operator license is valid for 
a 2-yearrenewable term.


Sec. 435.5  Policy and safety approvals.

    To obtain a reentry license, an applicant must obtain policy and 
safety approvals from the FAA. Requirements for obtaining these 
approvals are contained in subparts B and C of this part. Only a 
reentry license applicant may apply for the approvals, and may apply 
for either approval separately and in advance of submitting a complete 
license application, using the application procedures contained in part 
413 of this subchapter.


Sec. 435.7  Payload reentry determination.

    (a) A payload reentry determination is required to transport a 
payload to Earth on a reentry vehicle unless the proposed payload is 
exempt from payload review.
    (b) A payload reentry determination made under a previous license 
application under this subchapter may satisfy the requirements of 
paragraph (a) of this section.
    (c) The FAA conducts a review, as described in subpart D of this 
part, to make a payload reentry determination. Either a reentry license 
applicant or a payload owner or operator may request a review of the 
proposed payload using the application procedures contained in part 413 
of thissubchapter. Upon receipt of an application, the FAA may conduct 
a payload reentry review independently of a reentry license 
application.


Sec. 435.9  Issuance of a reentry license.

    (a) The FAA issues a reentry license to an applicant who has 
obtained all approvals and determinations required under this chapter 
for a reentry license.
    (b) A reentry license authorizes a licensee to reenter a reentry 
vehicle and payload, if any, in accordance with the representations 
contained in the reentry licensee's application, subject to the 
licensee's compliance with terms and conditions contained in license 
orders accompanying the reentry license, including financial 
responsibilityrequirements.


Sec. 435.11  Additional license terms and conditions.

    The FAA may amend a reentry license at any time by modifying or 
adding license terms and conditions to ensure compliance with 49 U.S.C. 
Subtitle IX, chapter 701, and applicableregulations.


Sec. 435.13  Transfer of a reentry license.

    (a) Only the FAA may transfer a reentry license.
    (b) An applicant for transfer of a reentry license shall submit a 
reentry license application in accordance with part 413 of this 
subchapter and satisfy the applicable requirements of this part. The 
FAA will transfer a reentry license to an applicant who has obtained 
all of the approvals and determinations required under this chapter for 
a reentry license. In conducting its reviews and issuing approvals and 
determinations, the FAA may incorporate any findings made part of the 
record to support the initial licensing determination. The FAA may 
modify a reentry license to reflect any changes necessary as a result 
of a reentry license transfer.


Sec. 435.15  Rights not conferred by reentry license.

    Issuance of a reentry license does not relieve a licensee of its 
obligation to comply with requirements of law that may apply to its 
activities.


Secs. 435.16-431.20  [Reserved]

Subpart B--Policy Review and Approval for Reentry of a Reentry 
Vehicle


Sec. 435.21  General.

    The FAA issues a policy approval to a reentry license applicant 
upon completion of a favorable policy review. A policy approval is part 
of the licensing record on which the licensing determination is based.


Sec. 435.23  Policy review requirements and procedures.

    Unless otherwise indicated in this subpart, regulations applicable 
to policy review and approval of the reentry of an RLV contained in 
part 431, subpart B of this subchapter shall apply to the policy review 
conducted for a license to reenter a reentry vehicle under this part.


Secs. 435.24-435.30  [Reserved]

Subpart C--Safety Review and Approval for Reentry of a Reentry 
Vehicle


Sec. 435.31  General.

    The FAA conducts a safety review to determine whether an applicant 
is capable of reentering a reentry vehicle and payload, if any, to a 
designated reentry site without jeopardizing public health and safety 
and the safety of property. A safety approval is part of the licensing 
record on which the licensing determination is based.


Sec. 435.33  Safety review requirements and procedures.

    Unless otherwise stated in this subpart, regulations applicable to 
safety review and approval of the reentry of an RLV contained in part 
431, subpart C of this subchapter shall apply to the safety review 
conducted for a license to reenter a reentry vehicle under this part.


Sec. 435.35  Acceptable reentry risk for reentry of a reentry vehicle.

    To obtain safety approval for reentry, an applicant must 
demonstrate that risk for the proposed reentry, when assessed in 
combination with launch of the reentry vehicle, does not exceed 
acceptable risk for the conduct of an RLV mission as defined in 
paragraphs (a) and (b) of Sec. 431.35 of this subchapter.


Secs. 435.36-435.40  [Reserved]

Subpart D--Payload Reentry Review and Determination


Sec. 435.41  General.

    The FAA conducts a payload reentry review to examine the policy and 
safety issues related to the proposed reentry of a payload, except a 
U.S. Government payload, to determine whether the FAA will approve the 
reentry of the payload.


Sec. 435.43  Payload reentry review requirements and procedures.

    Unless otherwise indicated in this subpart, regulations contained 
in part 431, subpart D of this subchapter applicable to a payload 
reentry review and determination for reentering a payload using an RLV 
shall apply to the payload reentry review conducted for a license to 
reenter a reentry vehicle under this part.

[[Page 56667]]

Secs. 435.44-435.50  [Reserved]

Subpart E--Post-Licensing Requirements--Reentry License Terms and 
Conditions


Sec. 435.51  General.

    Unless otherwise indicated in this subpart, post-licensing 
requirements contained in part 431 subpart E, of this subchapter 
applicable to a license to reenter an RLV shall apply to a license 
issued under this part.


Secs. 435.52-435.60  [Reserved]

Subpart F--Environmental Review


Sec. 435.61  General.

    Unless otherwise indicated in this subpart, environmental review 
requirements contained in part 431 subpart F, applicable to a license 
to reenter an RLV shall apply to an application for a reentry license 
under this part.


Secs. 435.62-435.70  [Reserved]

    Issued in Washington, DC on August 28, 2000.
Patricia Grace Smith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 00-22564 Filed 9-18-00; 8:45 am]
BILLING CODE 4910-13-U