[Federal Register Volume 68, Number 202 (Monday, October 20, 2003)]
[Notices]
[Pages 59977-59980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26373]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Commercial Space Transportation; Suborbital Rocket Launch

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: The FAA licenses launches of expendable and reusable launch 
vehicles (RLVs), including suborbital rockets, under regulations found 
in 14 CFR Ch. III, parts 400-450. The FAA is issuing this Notice to 
clarify the applicability of FAA licensing requirements to suborbital 
rocket launches, in general, and suborbital RLVs, in particular so that 
a vehicle operator can determine, in advance of consultation with the 
FAA, whether it

[[Page 59978]]

must obtain a launch license. Some suborbital RLVs currently under 
development use traditional aviation technology and components, 
including wings, for lift and glide capability, as well as rocket 
propulsion for thrust to maintain their trajectory. These vehicles may 
be termed ``hybrid'' in nature, because a single vehicle system uses 
aviation and aerospace technology during different portions of flight. 
This Notice advises an operator of a hybrid suborbital RLV that a 
proposed mission may require other FAA flight authorization, 
specifically an experimental airworthiness certificate (EAC), as a 
condition of a launch license, to operate in the National Airspace 
System (NAS).

FOR FURTHER INFORMATION CONTACT: Jay Garvin, AST-200, Manager, 
Licensing and Safety 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) 385-4700; or David Hempe, AIR-100, Manager, 
Aircraft Certification Service, Office of the Associate Administrator 
for Regulation and Certification, Federal Aviation Administration, U.S. 
Department of Transportation, 800 Independence Avenue, SW., Washington, 
DC 20591, (202) 267-8235.

Comments Invited

    The FAA is not opening a docket for the receipt of comments; 
however, we welcome input from person interested in submitting views 
and information to the FAA regarding suborbital RLV missions and 
concepts. Please send them to the attention of Jay Garvin, AST-200, 
Manager, Licensing and Safety Division, Office of the Associate 
Administrator for Commercial Space Transportation, Federal Aviation 
Administration, U.S. Department of Transportation, Room 331, 800 
Independence Avenue, SW., Washington, DC 20591.

SUPPLEMENTARY INFORMATION: 

Background

    The Federal Aviation Administration (FAA) licenses the launch of a 
launch vehicle, reentry of a reentry vehicle and the operation of a 
launch or reentry site under authority granted to the Secretary of 
Transportation in the Commercial Space Launch Act of 1984, as amended 
(CSLA), codified in 49 U.S.C. Subtitle IX, chapter 701, and delegated 
to the FAA Administrator. Under the CSLA, a U.S. citizen must obtain 
authorization from the FAA to launch, reenter or operate a launch or 
reentry site anywhere in the world. Any person wishing to conduct 
commercial space transportation activities in the United States must 
also obtain FAA authorization to do so. FAA authorization for these 
activities is granted by a license issued by the FAA's Associate 
Administrator for Commercial Space Transportation (AST) to the vehicle 
or site operator. A license prescribes terms and conditions for 
conducting authorized activity. Requirements for obtaining and 
remaining in compliance with a license are located in 14 CFR Chapter 
III, parts 400-450. U.S. Government space activities, including 
launches the government carriers out for the Government are not subject 
to licensing by the FAA.
    When the CSLA was enacted in 1984, only expendable launch vehicles 
(ELVs) and sounding rockets were available for private sector use, 
along with certain ballistic missiles adapted for commercial 
applications. A report prepared by the Senate Committee on Commerce, 
Science, and Transportation accompanying passage of the CSLA recognized 
that vehicle and space-related technologies would continue to evolve 
with commercialization of space access and assets and that the 
regulatory program would have to adapt. The Committee ``recognizes that 
additional requirements may be necessary to meet the requirements and 
consideration of future launch technologies and activities and new 
classes payloads that presently do not exist.'' S. Rept. 98-656, 
``Commercial Space Launches, 98th Cong., 2d Sess., at pp. 11-12.
    The Committee's observations in 1984 were borne out by the 
development of reentry capability for commercial use in the 1990s. 
Increasing emphasis on efficient and lower cost space access, combined 
with reentry capability, prompted a range of new launch vehicle 
concepts that would be fully or partially reusable. This new type of 
launch vehicle became known as a reusable launch vehicle or RLV, in 
contrast to conventional one-time use expendable launch vehicles or 
ELVs. In 1998, Congress amended the CSLA by adding reentry licensing 
authority for reentry vehicles, including RLVs. ``to establish the 
appropriate legal framework to ensure public safety is protected while 
minimizing regulatory burden, delay or uncertainty that could inhibit 
commercial exploitation of reentry capabilities.'' H. Rep. 105-347, 
``Commercial Space Act of 1997,'' 105th Cong., 1st Sess., at p. 21. 
Reentry licensing would authorize the purposeful return of a reentry 
vehicle and any payload from Earth orbit or outer space to Earth. A 
reentry vehicle is one that is designed to return from Earth orbit or 
outer space to Earth substantially intact.
    Although the FAA had licensing authority under the CSLA over 
suborbitally operated RLVs by virtue of its licensing authority over 
suborbital rocket launches, the addition of licensing authority for 
reentry activities and specific reference to RLVs in the 1998 
amendments eliminated regulatory risk, and removed any investor doubt, 
that Congress did indeed intend the FAA to address through CSLA 
licensing the unique safety and policy issues that may result from 
launch and intact landing of a launch vehicle, whether or not the 
vehicle enters Earth orbit before returning for landing on Earth.
    The FAA promptly issued licensing regulations to implement its 
newly added statutory authority over reentry activity and RLV missions 
in general. The FAA covered suborbitally operated RLVs in its 
rulemaking. Under the licensing requirements for RLV missions, a 
suborbitally operated RLV may follow either a ballistic or maneuverable 
trajectory. The FAA explained in its rulemaking a proposal that a 
``suborbital trajectory is a flight path that is not closed, whereas an 
orbit is a closed path. A suborbital trajectory may be ballistic, that 
is, acted on only by atmospheric drag and gravity, or it can be 
controlled by external forces and therefore maneuverable.'' See 64 FR 
19626-19666, April 21, 1999, at p. 19630, fn. 1. The FAA proposed, and 
codified, a uniform measure of public safety risk for an RLV that is 
launched and subsequently returns from Earth orbit and one that is 
launched and operates in suborbital fashion, where maneuvered in its 
return trajectory or returning through ballistic flight. The final RLV 
mission licensing rule (14 CFR part 431), issued September 19, 2000, 
clarified that all RLV missions, whether orbital (consisting of launch 
and reentry) or suborbital (launch and intact landing) are covered by 
the rule although only those RLVs that return to Earth from outer space 
or Earth orbit may be considered to ``reenter'' under the statutory 
definition of ``reenter; reentry.'' See ``Final Rule, Commercial Space 
Transportation Reusable Launch Vehicle and Reentry Licensing 
Regulations,'' 65 FR 56618-56667, September 19, 2000.
    Despite the efficient development of a comprehensive regulatory 
regime for RLVs, vehicle development slowed in the late 1990s, with the 
downturn in the Low Earth Orbit (LEO) satellite market. Recently, 
though, mounting demand for

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space tourism services has prompted renewed interest in commercial RLV 
possibilities. To spur entrepreneurial competition and development, the 
X-Prize Foundation promises a $10 million purse for the first 
qualifying contestant to successfully conduct two piloted flights of a 
privately financed and built vehicle, within a two-week timeframe, to a 
minimum altitude of 100 kilometers. Ultimately, RLV technology may 
provide trans-atmospheric high-speed flight around the globe, for rapid 
international travel.
    The FAA issued reports for the years 1998-2001, surveying the 
various RLV concepts under development, publicly and privately, 
including announced X-Prize contestants. The reports are available and 
can be downloaded from the AST Web site: http://ast.faa.gov. A brief 
overview of vehicles featured in the various reports illustrates the 
range of RLV concepts, from single-stage-to-orbit vertical take-off 
models to multi-stage air-launched systems employing wing-generated 
lift to gain altitude before initiating rocket motors to generate 
thrust.
    Some RLV concepts combine aviation and space technology so that 
they are essentially hybrid in nature. Some vehicles are hybrid because 
a single vehicle integrates characteristics of both flight 
technologies, employing them for different stages of flight. Others are 
hybrid because two vehicles, each capable of operating independently at 
some point during flight, are combined or joined, to form a launch 
system, e.g., where one vehicle serves as a high altitude platform from 
which a second vehicle begins its flight.
    RLV designers whose vehicles embody aircraft operating 
characteristics, in whole or in part, have expressed uncertainty about 
the type of regulatory regime that would cover flight operations, i.e., 
whether a launch license or aircraft certification, such as an 
experimental airworthiness certificate (EAC), would be required for 
flight authorization. Some also question whether a test flight is a 
licensable event or requires only aircraft certification as the sole 
flight authorization, particularly where flight operations would be 
limited to high altitude atmospheric tests not bound for low Earth 
orbit or otherwise into outer space.
    There is concern that uncertainty regarding the applicable 
regulatory regime may impede the ability of developers of hybrid 
suborbital RLVs to obtain the financing needed to take their concepts 
from the drawing board into flight testing. Concerns stem from not 
knowing, in advance of operation, whether suborbital flight would be 
regulated under the CSLA and the Commercial Space Transportation 
Regulations, 14 CFR Ch. III, as launch of an RLV that is a suborbital 
rocket, or under the Federal Aviation Regulations as civil aircraft 
that must satisfy airworthiness certification requirements. Although 
both regulatory regimes, launch licensing and aircraft certification, 
protect the health and safety of the uninvolved public, there are 
differences in the approval processes that may affect technical choices 
in terms of vehicle design and planned flight profiles, in addition to 
the perceived difference in cost of regulatory compliance.
    At a July 24, 2003 joint congressional hearing on commercial human 
space flight, witnesses noted the uncertainty surrounding the 
appropriate flight authorization for a winged suborbital RLV. They 
urged Congress to reduce the regulatory risk facing potential investors 
by mandating an enabling regulatory framework for commercial suborbital 
human space flight with AST taking the lead in regulating the activity.
    The FAA is issuing this Notice to eliminate uncertainty regarding 
the applicable regulatory regime for a suborbital RLV and suborbital 
rockets, in general. The Notice provides a technical demarcation 
between launch vehicles and aircraft so that the public, including 
vehicle developers, can determine in advance of consultation with the 
FAA whether a launch license or only aircraft certification is required 
to conduct flight operations.

Suborbital Rocket

    The Secretary of Transportation has authority to differentiate 
between civil aviation and launch of a launch vehicle, including a 
suborbital rocket. Authority under the CSLA to license suborbital 
rocket launches and other commercial space transportation activities 
was delegated to the FAA Administrator in 1995.\1\ Licensing authority 
is exercised by AST, under a delegation from the FAA Administrator. 
Safety of air commerce and the National Airspace System (NAS) is 
regulated under separate statutory authority provided in 49 U.S.C. 
Subtitle VII, Part A, ``Air Commerce and Safety.''
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    \1\ Certain small-scale unmanned rocket launches have 
traditionally been subject to FAA flight authorization under 14 CFR 
part 101, and are not subject to licensing under the CSLA. FAA 
authority over those small recreational and hobby rockets was not 
affected by enactment of the CSLA, nor was delegation of CSLA 
licensing authority to the FAA Administrator intended to place 
launch vehicle licensing under 14 CFR part 101 or aircraft 
certification regulations.
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    A license under the CSLA is required to launch a suborbital rocket. 
The CSLA defines a ``launch vehicle'' to mean a vehicle built to 
operate in, or place a payload in, outer space, and a suborbital 
rocket. ``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. 49 U.S.C. 
70102. for a suborbital rocket, ``launch'' under the CSLA means placing 
a suborbital rocket on a suborbital trajectory.
    This Notice informs the public of the criteria used by the FAA to 
differentiate civil aircraft subject to aircraft certification and 
operating standards for flight in airspace from a suborbital rocket 
launch subject to licensing under the CSLA. The FAA considers use of 
rocket propulsion for thrust, as opposed to wing-generated lift, in 
determining whether a vehicle that flies through airspace is a 
suborbital rocket under the CSLA, or an aircraft. Quite simply, a 
vehicle that relies principally upon rocket-propelled thrust to 
maintain its intended flight trajectory during powered flight is a 
launch vehicle, or rocket, subject to licensing under the CSLA unless 
exempt. A vehicle that relies chiefly upon lift generated by its wings 
in maintaining its intended course during powered flight is an aircraft 
subject to regulation under the Federal Aviation Regulations. A rocket-
propelled civil aircraft that relies upon wing-borne lift for the 
majority of its powered flight is not a suborbital rocket requiring a 
license for operation. The ``E-Z Rocket,'' flown by X-COR, is an 
example of a rocket-propelled aircraft.
    To summarize, a suborbital rocket subject to CSLA licensing is a 
rocket-propelled vehicle intended for flight on a suborbital 
trajectory, whose thrust is greater than its lift for the majority of 
the powered portion of its flight.
    The FAA rulemaking regarding RLV missions, concluded in 2000, 
addressed ``suborbital trajectory'' in the context of RLVs. The FAA 
regards a suborbital trajectory as the intentional flight path, or any 
portion of that flight path, of a launch vehicle or reentry vehicle, 
whose vacuum instantaneous impact point (IIP) does not leave the 
surface of the earth. The IIP of a launch vehicle is the projected 
impact point on Earth where the vehicle would land if its engines stop 
or where vehicle debris, in the event of failure and break-up, would 
land. The notion of a ``vacuum'' IIP reflects the absence of 
atmospheric effects in performing the IIP calculation. If the vacuum 
IIP never leaves the Earth's surface, the vehicle would not achieve 
Earth orbit and would therefore be on a suborbital trajectory.

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    The FAA relies upon thrust versus lift during powered flight in 
differentiating launch vehicles from aircraft because it provides a 
clear and objective point of demarcation that relies on technical 
distinctions grounded in the science of physics, not labels. Other 
options for differentiating launch vehicles from aircraft are not as 
well grounded in science or logic. For example, the FAA could point to 
the use of wings and classify all winged vehicles as aircraft that must 
satisfy airworthiness certification requirements; however, the Pegasus 
launch vehicle is a winged vehicle used to place payloads in Earth 
orbit and is subject to CSLA licensing. Similarly, the Space Shuttle 
has wings but is not regarded as an aircraft (nor is it subject to 
licensing because its operation is deemed to be by and for the 
Government and therefore exempt from the CSLA). The FAA could look to 
other traditional indicia of space flight, such as use of pressure 
suits or reaction control systems, but both are used for high altitude 
aircraft and therefore do not help us distinguish launch vehicles from 
aircraft. Altitude is also not an appropriate discriminator for launch 
vehicles and aircraft because some suborbital rockets, including 
sounding rockets, are not necessarily intended for launch into Earth 
orbit or outer space and because aircraft can be designed to operate at 
increasingly extreme altitudes above controlled airspace. Therefore, 
altitude does not offer an objective means of distinguishing suborbital 
launch vehicles from aircraft.
    The FAA finds that flight physics provides a clear, certain and 
objective criteria the public can use in determining whether a vehicle 
requires a license from the FAA under the CSLA. Using the suborbital 
rocket criteria identified above, a prospective operator can determine 
whether it must contact AST and begin the pre-application consultation 
process required for a launch license.

Licensing Requirements for Suborbital RLVs

    A launch license is issued consistent with public health and 
safety, safety of property, and U.S. national security and foreign 
policy interests, including international obligations. Upon 
satisfactory completion of the various reviews required under the 
Commercial Space Transportation Licensing Regulations, AST issues a 
license to an operator authorizing the mission; however, authorization 
is subject to operator compliance with license terms and conditions.
    The FAA has an established regulatory framework governing launches 
of suborbital rockets, both expendable and reusable. Suborbital ELVs 
are regulated under license requirements contained in 14 CFR part 
415.\2\ Suborbital RLVs, including those that employ traditional 
aviation characteristics, such as wings and landing gear, are regulated 
under RLV mission licensing requirements contained in 14 CFR part 431.
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    \2\ AN FAA rulemaking is pending that would revise licensing and 
safety requirements for licensed ELV launches, including suborbital 
ELVs. See Docket No. FAA-2000, accessible through the Department of 
Transportation's electronic Docket Management System (DMS), for the 
most current rulemaking proposal and public comments. You can access 
the DMS using the following Web site: http://dms.dot.gov.
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    Certain suborbital RLVs, described in this Notice as ``hybrid,'' 
that employ aviation characteristics are also regulated under FAA 
aircraft regulations. Where operation of a launch vehicle includes 
operation of a civil aircraft for any portion of flight, an EAC may be 
required, in addition to a launch license, in order to obtain complete 
flight authorization for operation in the national airspace system. 
Where appropriate, obtaining and complying with an EAC under 14 CFR 
parts 21 and 91, with special operating conditions, would be made a 
condition of a suborbital RLV mission license. During pre-license 
application consultation, AST will refer an applicant proposing a 
hybrid suborbital RLV mission to the FAA's Aircraft Certification 
Service and Flight Standards Service to obtain the required certificate 
if the applicant has not already done so.
    AST has issued an advisory circular (AC) regarding test flight 
launch licensing to illustrate acceptable means of satisfying safety 
requirements of 14 CFR part 431. Test flights may be a desirable means 
of validating performance capabilities of a new vehicle under 
increasingly demanding flight parameters. AC 431.35-3, ``Licensing Test 
Flight RLV Missions,'' issued August 2002, explains how a license 
applicant can streamline its submissions under the safety requirements 
of part 431, when seeking authorization to conduct a series of 
suborbital RLV test flights that are subject to licensing under the 
CSLA.
    Not all test flights will require licensing under the CSLA. A 
license will be required only for those vehicles that operate as a 
suborbital rocket and that are launched. In addition, the Commercial 
Space Transportation Licensing Regulations exempt from licensing 
certain low-powered rocket launches known as ``amateur rocket 
activities.'' Test flights of a hybrid suborbital RLV that fit the 
definition of ``amateur rocket activities'' are not licensed by the 
FAA, although an EAC may be required. The term, ``amateur rocket 
activities,'' is defined in 14 CFR 401.5. It means launch activities 
conducted at private sites that satisfy all three of the following 
characteristics:
    [sbull] Powered by a motor(s) having a total impulse of 200,000 
pound-seconds or less;
    [sbull] Total burning or operating time of less than 15 seconds; 
and
    [sbull] A ballistic coefficient--i.e., gross weight in pounds 
divided by frontal area of rocket vehicle--less than 12 pounds per 
square inch.
    The FAA also retains authority to waive for a particular applicant 
the requirement to obtain a license where the agency determines that 
the waiver is in the public interest and will not jeopardize public 
health and safety, the safety of property and U.S. national security 
and foreign policy interests.

    Issued in Washington, DC, on October 14, 2003.
Patricia Grace Smith,
Associate Administrator for Commercial Space Transportation.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
[FR Doc. 03-26373 Filed 10-15-03; 4:42 pm]
BILLING CODE 4910-13-M