[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Notices]
[Pages 48549-48551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18200]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Commercial Space Transportation; Waiver of License Requirement 
for Scaled Composites' Pre-flight Preparatory Activities Conducted at a 
U.S. Launch Site

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of waiver.

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SUMMARY: The FAA has determined to waive the requirement for Scaled 
Composites, LLC, to obtain a launch license for its pre-flight ground 
operations conducted at Mojave Airport. Scaled Composites is authorized 
to conduct Reusable Launch Vehicle (RLV) missions under License No. 
LRLS 04-067, issued by the FAA on April 1, 2004. The East Kern Airport 
District (EKAD) is authorized to operate a launch site at the Mojave 
Airport under License No. LSO 04-009, issued by the FAA on June 17, 
2004. The FAA finds that waiving the requirement for Scaled Composites 
to obtain a launch license for its pre-flight ground operations 
conducted in preparation for flight is in the public interest and will 
not jeopardize public health and safety, safety of property, and 
national security and foreign policy interests of the United States.

FOR FURTHER INFORMATION CONTACT: Ms. Carole Flores, Manager, Licensing 
and

[[Page 48550]]

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) 385-4701.

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. Licensing authority under the CSLA is carried 
out by the Associate Administrator for Commercial Space Transportation.
    On April 1, 2004, AST issued a mission-specific reusable launch 
vehicle (RLV) mission license to Scaled Composites, LLC (Scaled 
Composites). The license, LRLS 04-067, was issued in accordance with 
licensing requirements under 14 CFR part 431. The license authorizes 
Scaled Composites to conduct up to six manned suborbital RLV missions 
from and within controlled airspace near Mojave, California. It is 
valid for up to one year or until the authorized missions are 
completed, whichever occurs first. As of the date of this notice, 
Scaled Composites has conducted three RLV missions under the license 
using its SpaceShipOne launch vehicle.
    SpaceShipOne is an air-launched, winged, hybrid rocket-powered, 
horizontal landing suborbital rocket. It is carried aloft using a 
carrier aircraft, known as the White Knight. The White Knight is 
operated solely under an Experimental Airworthiness Certificate (EAC). 
SpaceShipOne is operated under both a launch license and an EAC 
simultaneously.
    SpaceShipOne and the White Knight are housed and prepared for 
flight at Mojave Airport. During a nominal mission, the White Knight 
takes off from a runway at Mojave Airport with SpaceShipOne under 
captive carriage. The White Knight flies to an altitude of about 50,000 
feet, releases the SpaceShipOne launch vehicle, and then returns to the 
Mojave Airport. Upon release, SpaceShipOne glides for several seconds 
before its pilot ignites its rocket motor. SpaceShipOne flies to an 
altitude as high as 100 kilometers on a suborbital trajectory. Upon 
completion of its suborbital flight, SpaceShipOne lands back at Mojave 
Airport.
    Under Scaled Composites' license, the launch begins upon rocket 
motor ignition of SpaceShipOne. By beginning the launch, and thus the 
license, at rocket motor ignition, captive carry operations and 
SpaceShipOne free flight prior to rocket motor ignition are not covered 
by the license.
    AST's licensing authority derives from the CSLA, which states that 
a license is required ``to launch a launch vehicle.'' 49 U.S.C. 
70104(a). Accordingly, the definition of ``launch'' controls the scope 
of a launch license. By statute, for a suborbital RLV, ``launch'' means 
to place or try to place a launch vehicle in a suborbital trajectory, 
and includes activities involved in the preparation of a launch vehicle 
or payload for launch, when those activities take place at a launch 
site in the United States. 49 U.S.C. 70102(3). By regulation, licensed 
pre-flight activities begin with the arrival of a launch vehicle or 
payload at a U.S. launch site. 14 CFR 401.5.
    On June 17, 2004, the FAA granted the East Kern Airport District 
(EKAD) a launch site operator license, LSO 04-009, authorizing EKAD to 
operate a launch site at the Mojave Airport. Because the Mojave Airport 
is now a licensed launch site, the statutory and regulatory definition 
of launch requires Scaled Composites' pre-flight ground operations to 
be authorized by a launch license, unless waived by the FAA.

Waiver Criteria

    The CSLA allows the FAA to waive the requirement to obtain a 
license for an individual license applicant if the Administrator 
decides that the waiver is in the public interest and will not 
jeopardize public health and safety, safety of property, and national 
security and foreign policy interests of the United States. 49 U.S.C. 
70105(b)(3).
    For reasons described below, the FAA has waived the requirement for 
Scaled Composites to obtain a launch license for its pre-flight 
preparatory ground operations at the Mojave Airport.
    In deciding whether or not to waive the requirement to obtain a 
license for pre-flight ground operations, the FAA must analyze whether 
the waiver: (1) Is in the public interest; (2) will not jeopardize 
public health and safety or safety of property; and (3) will not 
jeopardize national security and foreign policy interests of the United 
States.
    For the first two items, the FAA utilizes a four-prong test, 
discussed below. For the last item, the FAA looks at any aspects of the 
proposal that may have national security or foreign policy 
implications.

Four-Prong Test

    The four-prong test used by the FAA was originally espoused by the 
House Science Committee in 1995, as guidance to the FAA to assist it in 
defining a ``launch'' for purposes of exercising licensing jurisdiction 
under the CSLA. H.R. Rep. No. 233, 104th Cong., 1st Sess., at 60 
(1995). The guidance acknowledged that there are pre-flight activities 
that may properly be regulated as part of a ``launch,'' because they:
    1. Are closely proximate in time to ignition or lift-off,
    2. Entail critical steps preparatory to initiating flight,
    3. Are unique to space launch, and
    4. Are inherently so hazardous as to warrant AST's regulatory 
oversight under 49 U.S.C. chapter 701.
    This test, as modified by the House Science Committee in 1997, was 
used as the basis for a statutory change in the definition of the term 
``launch'' in the Commercial Space Act of 1998. Public Law 105-303, 112 
Stat. 2843 (1998), 49 U.S.C. 70102(3). In that Act, Congress revised 
the definition of launch to include activities ``involved in the 
preparation of a launch vehicle or payload for launch, when those 
activities take place at a launch site in the United States.''
    Although the four-prong test is not a statutory or regulatory 
requirement, the FAA believes that it provides a rational approach to 
determining whether licensing of pre-flight activity may be waived, 
consistent with the CSLA, as it provided the rationale for including 
preparatory activities in the ``launch'' definition enacted by Congress 
in 1998.
    The test is particularly useful for suborbital RLVs. As noted 
above, under the Commercial Space Transportation regulations, the term 
launch includes pre-flight ground operations beginning with the arrival 
of a launch vehicle or payload at a U.S. launch site for purposes of 
preparing for flight. The 1999 final rule that first promulgated that 
definition explained that in drawing a bright line, that is, beginning 
with the arrival of a launch vehicle or payload at a U.S. launch site 
for purposes of preparing for flight, the FAA reviewed common launch 
practices for the range of vehicles then subject to licensing (all 
expendable launch vehicles) and noted that the vehicles studied share 
similar pre-flight processing operations with a similar likelihood of 
mishap. As a general rule, those hazardous operations begin shortly 
after arrival of the launch vehicle at a U.S. launch site. 64 FR 19592. 
The RLV mission licensing regulations issued in 2000, utilized a

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comparable bright line for determining when a license is required; 
however, in doing so, the agency noted that it was doing so for 
consistency and in the belief that processing hazards for RLVs would be 
comparable to those associated with expendable launch vehicle 
processing activities. 65 FR at 56679. However, since that rulemaking, 
a number of new vehicles have been proposed for licensing that do not 
use conventional expendable launch vehicle technology, such as hybrid 
RLVs.
    Applying the four prong test, if pre-flight operations do not 
qualify for licensing under the four-prong test, a waiver may be in the 
public interest because the CSLA advises the agency to streamline 
licensing and regulate only to the extent necessary to safeguard U.S. 
interests, including public safety, a key outcome of the four-prong 
test. There should not be any public safety or safety of property 
concerns if licensing authority is waived because hazards are addressed 
in applying the four-prong test.

The Four-Prong Test Applied To SpaceShipOne Pre-flight Ground 
Operations

    Certain SpaceShipOne pre-flight preparatory activities conducted at 
Mojave Airport meet the first three prongs of the four-prong test. That 
is, certain pre-flight ground operations are closely proximate in time 
to ignition or lift-off, entail critical steps preparatory to 
initiating flight, and are unique to space launch. For example, the 
preparation of the rocket motor and reaction control systems for flight 
would meet these criteria.
    However, no pre-flight ground operations conducted by Scaled 
Composites in preparing SpaceShipOne for flight meet the fourth prong 
of the four-prong test. That is, no pre-flight ground operation is 
inherently so hazardous as to warrant AST's regulatory oversight under 
49 U.S.C. Chapter 701.
    SpaceShipOne pre-flight ground operations pose negligible risk to 
the public due to the vehicle's small size and selected propellants. 
The SpaceShipOne main propulsion system is a hybrid rocket motor that 
uses non-toxic, storable propellants--nitrous oxide (N2O) as 
the oxidizer and Hydroxyl Terminated Polybutadiene (HTPB) as the fuel. 
The motor is not explosive and is extremely difficult to ignite 
accidentally. SpaceShipOne's other propulsion system, its reaction 
control system, uses only dry air.
    SpaceShipOne presents no solid rocket motor handling or processing 
risks such as fire, explosion, debris, or unintended motor stage 
flight. Nor does it present any liquid propellant hazards such as 
toxicity or vapor cloud explosions. Although high-pressure gas and 
other industrial hazards may exist, those hazards have limited reach, 
and should not extend to the public at Mojave Airport.

National Security and Foreign Policy Implications of SpaceShipOne Pre-
flight Ground Operations

    The FAA evaluation conducted in support of Scaled Composites' 
license (LRLS 04-067) concluded that there are no issues relating to 
U.S. national security or foreign policy interests that would require 
the FAA to prevent launches of SpaceShipOne. Pre-flight ground 
operations conducted at the Mojave Airport have no effects outside of 
the airport facilities that are used by Scaled Composites. Thus, there 
are no national security or foreign policy issues associated with pre-
flight preparatory ground operations.

Summary and Conclusion

    A waiver is in the public interest because it accomplishes the 
goals of the CSLA and avoids unnecessary regulation. The waiver will 
not jeopardize public health and safety or safety of property because 
pre-flight preparatory activities for SpaceShipOne conducted at the 
Mojave Airport are benign to the public. A waiver will not jeopardize 
national security and foreign policy interests of the United States.
    For the foregoing reasons, the FAA has waived the requirement for 
Scaled Composites to obtain a launch license covering SpaceShipOne pre-
flight preparatory activities conducted at the Mojave Airport.

    Issued in Washington, DC, on August 2, 2004.
Patricia Grace Smith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 04-18200 Filed 8-9-04; 8:45 am]
BILLING CODE 4910-13-P