[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30402]
Rules and Regulations
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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 /
Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 431
Waiver of Acceptable Mission Risk Restriction for Reentry and a
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of waiver.
SUMMARY: This notice of waiver concerns two petitions for waiver
submitted to the FAA by Space Exploration Technologies Corp. (SpaceX):
A petition to waive the requirement that a waiver petition be submitted
at least sixty days before the proposed effective date; and a petition
to waive the restriction that the combined risk to the public from the
launch and reentry of a reentry vehicle not exceed an expected average
number of 0.00003 casualties (Ec <= 30 x 10-6)
from debris. The first petition is unnecessary because, as explained
below, SpaceX demonstrated good cause for its late filing. The FAA
grants the second petition and waives the restriction that the combined
risk to the public from the launch and reentry of a reentry vehicle not
exceed an expected average number of 0.00003 casualties (Ec
<= 30 x 10-6) from debris.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this waiver, contact Philip Brinkman, Licensing Program Lead,
Commercial Space Transportation--Licensing and Safety Division, 800
Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-
7715; e-mail: [email protected]. For legal questions concerning
this waiver, contact Laura Montgomery, Senior Attorney for Commercial
Space Transportation, AGC-200, Office of the Chief Counsel, Regulations
Division, Federal Aviation Administration, 800 Independence Avenue,
SW., Washington, DC 20591; telephone: (202) 267-3150.
On October 11, 2010, SpaceX submitted a waiver petition to the
Federal Aviation Administration's (FAA's) Office of Commercial Space
Transportation (AST) requesting two waivers with respect to a reentry
license for Dragon, a reentry vehicle, to be carried aboard Falcon 9
flight 002. First, SpaceX requested a waiver of 14 CFR 404.3(b)(5),
which requires that a waiver petition be submitted at least sixty days
before the proposed effective date of the waiver. Second, SpaceX
requested a waiver of 14 CFR 431.35(b)(1)(i),\1\ which prohibits a
mission involving a reentry vehicle when the total expected average
number of casualties (Ec) for that mission exceeds 30 x
\1\ Even though Dragon is a reentry vehicle and not a reusable
launch vehicle, 14 CFR 435.35 incorporates and applies section
431.35 to all reentry vehicles.
The 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, codified in 49 U.S.C. Subtitle
IX, chapter 701 (Chapter 701), and delegated to the FAA Administrator.
The Associate Administrator for Commercial Space Transportation
exercises licensing authority under Chapter 701.
SpaceX is a private commercial space flight company. It has entered
into a Space Act Agreement with the National Aeronautics and Space
Administration (NASA) as part of NASA's Commercial Orbital
Transportation Services (COTS) program. The COTS program is designed to
stimulate efforts by the private sector to demonstrate safe, reliable,
and cost-effective space transportation to the International Space
The petition addresses an upcoming demonstration flight that SpaceX
plans to undertake as part of the COTS program. At the time of the
filing of the petition, the launch was scheduled for November 8, 2010.
SpaceX's Falcon 9 launch vehicle will launch a reentry vehicle, named
Dragon, into orbit. Once Dragon is in orbit, it will be subjected to a
ground-implemented health check. The health check is designed to check
time-dependent variables to ensure the health and functionality of the
propellant, power, and avionics subsystems. If Dragon passes the health
check, a ground operator will issue a remote command to reenter, which
will initiate Dragon's reentry and ultimately result in Dragon
splashing down in the ocean off the coast of Southern California. If
Dragon fails the health check, the ground operator will issue a remote
command that will disable Dragon's reentry, leaving Dragon in orbit.
While planning for this mission, SpaceX calculated that 21 x
10-6 is the expected average number of casualties
(Ec) to which the public will be exposed by vehicle or
vehicle debris impact hazards associated with the launch of Falcon 9
and reentry of Dragon. Because this Ec was less than the 30
x 10-6 limit imposed by 14 CFR 431.35(b)(1)(i), SpaceX
believed that it complied with the regulations.
The FAA informed SpaceX that the FAA assessed the risk for the
launch of Falcon 9 and reentry of Dragon as 47 x 10-6. The
Ec for the launch of Falcon 9 is 19 x 10-6, and
by adding an Ec of 7 x 10-6 to account for the
nominal reentry of Dragon and an Ec of 21 x 10-6
to account for the possibility that Dragon will initiate a failed
attempt at reentry, the FAA obtained a total Ec value of 47
x 10-6 for the launch of Falcon 9 and reentry of Dragon.
Because the FAA's calculations resulted in a total Ec value
that exceeded the 30 x 10-6 limit imposed by section
431.35(b)(1)(i), the FAA informed SpaceX that it would need to obtain a
In response, SpaceX filed two petitions for a waiver. First, SpaceX
requested a waiver of the requirement that a petition be submitted at
least sixty days before the proposed effective date of the waiver.
Second, SpaceX requested a waiver of the restriction that the total
Ec for a launch and reentry not exceed 30 x 10-6.
In its waiver request, SpaceX emphasized that it had attempted to
ensure public safety by adopting the following risk mitigation measures
1. Dragon's thermal protection system has been modified so that if
it enters facing down it will burn and demise.
2. Dragon can keep orbiting in order to increase the probability of
initiating a safe reentry.
3. Dragon will automatically vent its propellants if it is not able
to reenter as planned. Venting occurs autonomously, but SpaceX has the
ability to issue a back-up command from the ground.
4. In the case of a failed or degraded deorbit burn, Dragon
automatically drains propellants and subsequently deploys its
5. A ground command received through one of three receivers and
through multiple RF links, via TDRSS and multiple ground stations, can
command the venting of any remaining fuel and the draining of battery
power to reduce the possibility of explosion or toxic fumes when Dragon
6. Dragon has the ability to autonomously guide itself to a pre-
determined site located more than 780 km from the coastline.
7. Dragon has the ability to monitor its safety-critical systems in
8. Dragon has over 100% margin on both power and propellant
9. Dragon has a space-grade Inertial Measurement Unit and space-
grade flight computer, both of which have extensive flight heritage
including use on the International Space Station.
10. Dragon has redundant drogue parachutes and dual redundant main
11. The vehicle's thrusters are plumbed such that Dragon can
deorbit and reenter with the loss of any two entire propulsion modules.
12. The vehicle has backup capabilities within all of its major
Chapter 701 allows the FAA to waive a license requirement if the
waiver (1) will not jeopardize public health and safety, safety of
property, (2) will not jeopardize national security and foreign policy
interests of the United States, and (3) will be in the public interest.
49 U.S.C. 70105(b)(3) (2010); 14 CFR 404.5(b) (2010).
Section 404.3 Waiver Petition
Section 404.3(b)(5) requires that a petition for a waiver be
submitted at least sixty days before the proposed effective date of the
waiver. However, this section also provides that a petition may be
submitted late if the petitioner shows good cause. Id. (b)(5).
Here, SpaceX submitted its waiver petition on October 11, 2010,
which was less than sixty days from its planned November 8, 2010,
launch date. However, in its petition, SpaceX explained that it
initially calculated the risk for the launch of Falcon 9 and the
reentry of Dragon in a different manner than the FAA, and was not aware
that a waiver would be required until so informed by the FAA. Once the
FAA informed SpaceX that it needed to obtain a waiver, SpaceX proceeded
to apply for the waiver ``in a timely fashion.'' As such, the FAA has
found that SpaceX had good cause for submitting its waiver petition
less than sixty days from the planned November 8, 2010, launch date.
Therefore, SpaceX's late submission does not violate section
404.3(b)(5), and a waiver of that section is unnecessary.
Section 431.35(b)(1)(i) Waiver Petition
Section 431.35(b)(1)(i) prohibits a launch and reentry mission if
the total Ec for that mission exceeds 30 x 10-6.
For reasons described below, the FAA waives this restriction to allow
SpaceX to conduct a mission whose total Ec is 47 x
10-6, where launch and reentry are each less than 30 x
10-6. In deciding whether or not to issue a waiver, the FAA
had to analyze whether the waiver: (1) Would jeopardize public health
and safety or safety of property; (2) would jeopardize national
security and foreign policy interests of the United States; and (3) was
in the public interest. See 49 U.S.C. 70105(b)(3); 14 CFR 404.5(b).
A. Public Health and Safety and Safety of Property
In order to determine whether granting a waiver would jeopardize
public health and safety or safety of property, the FAA considered: (1)
Whether section 431.35 requires that the Ec calculations
account for the possibility of a random uncontrolled reentry that
occurs as a result of a reentry vehicle ceasing to function upon
arrival in orbit; (2) whether granting a waiver would be consistent
with the safety rationale underlying section 431.35; and (3) whether
there were any other factors that would impact the waiver decision in
i. Random Uncontrolled Reentry
At the outset, the FAA first addressed whether to account for
random uncontrolled reentry not associated with a licensed reentry.
Section 431.35 could apply to two types of random uncontrolled reentry:
(1) A random uncontrolled reentry occurring as a result of a failed
reentry attempt; and (2) a random uncontrolled reentry occurring as a
result of a reentry vehicle ceasing to function upon arrival in orbit.
The preamble to the final rule provides ambiguous guidance on this
matter. Commercial Space Transportation Reusable Launch Vehicle and
Reentry Licensing Regulations, Final Rule, 65 FR 56618 (Sep. 19, 2000).
When discussing the possibility of requiring contingency abort
locations for reentries, the preamble states that an applicant would
have to show that an uncontrolled random reentry would not exceed
acceptable risk criteria for the mission. Id. at 56641. Another part of
the preamble states that 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
demonstrate that such a reentry would not exceed acceptable risk
criteria for the mission. Id. at 56623 n.2. As a result of this waiver
petition, the FAA has had to address to which of the two possible
random reentry scenarios this assessment must apply.
One possible interpretation of the preamble is that section 431.35
requires that the Ec calculations account for the
possibility of a random uncontrolled reentry that occurs as a result of
a reentry vehicle ceasing to function upon arrival in orbit. However,
this interpretation would be problematic because Chapter 701 limits the
FAA's licensing of reentry to scenarios involving purposeful reentry.
See 49 U.S.C. 70102(12) (defining ``reentry'' as a purposeful act); see
also 65 FR at 56624 (clarifying that, under Chapter 701, section 431.35
is intended to regulate scenarios in which ``survivability by design is
combined with the purposeful act of reentry''). Because a random
uncontrolled reentry arising out of a reentry vehicle ceasing to
function upon arrival in orbit is not purposeful and is thus not
licensed, an interpretation that section 431.35 applies to this type of
reentry would conflict with Chapter 701.
The better approach is to limit the risk associated with a random
uncontrolled reentry to that caused by a failed reentry attempt.
Because an attempt at a reentry is a purposeful act and thus requires a
license, the FAA should account for the risk associated with a random
uncontrolled reentry that occurs as a result of a failed attempt. See
49 U.S.C. at 70102(12); 65 FR at 56624.
Under the above rationale, the total Ec for the reentry
of Dragon is the Ec for nominal reentry (7 x
10-6) plus the Ec for the possibility of a failed
attempt at reentry (21 x 10-6), which results in a total
reentry Ec of 28 x 10-6. When the Ec
for the launch of Falcon 9 (19 x 10-6) is added to the
reentry Ec of Dragon, the combined Ec for the
Falcon 9 launch and Dragon reentry comes out to 47 x 10-6.
ii. Consistency With Rationale for Section 431.35
The next matter that the FAA addressed was whether granting a
waiver in this case would be consistent with the safety rationale
underlying section 431.35. In the preamble to the notice of proposed
rulemaking (NPRM), the FAA explained that, when it was drafting section
431.35, it decided to use a single aggregate risk threshold for a
mission involving the launch and reentry of a reentry vehicle.
Commercial Space Transportation Reusable Launch Vehicle and Reentry
Licensing Regulations, NPRM, 64 FR 19626, 19635 (Apr. 21, 1999).
However, the FAA also acknowledged that there could be circumstances
where it would be appropriate to separate launch from reentry risk,
such as where different operators were involved and could be
apportioned allowable risk thresholds, or where intervening events or
time made reentry risks sufficiently independent of launch risks as to
warrant separate consideration. Id.
Here, the health check of Dragon, a different vehicle than the
Falcon 9 launch vehicle, that will take place once Dragon is in orbit
is an intervening event that makes the launch risk associated with the
launch of Falcon 9 independent of the reentry risk associated with the
reentry of Dragon. The health check will permit SpaceX to reevaluate
Dragon's condition after the launch has taken place, and to make a
fresh determination about whether Dragon should be permitted to
reenter. If, after conducting a post-launch health check of Dragon,
SpaceX finds safety concerns associated with reentry, SpaceX will be
able to issue a command to disable Dragon's reentry. As such, because
the reentry of Dragon is based on the results of an in-orbit health
check that will be conducted independently of the launch, the risks
associated with the launch of Falcon 9 and reentry of Dragon are
sufficiently independent to warrant separate consideration in this
Evaluating these risks separately, the Ec for the launch
of Falcon 9 is 19 x 10-6, which is within the 30 x
10-6 limit imposed by section 431.35(b)(1)(i). Likewise, the
Ec for the reentry of Dragon is 28 x 10-6, which
is also within the 30 x 10-6 limit that the FAA applies to
launch hazards. Accordingly, the FAA has determined that granting a
waiver in this case would be consistent with the safety rationale
underlying section 431.35.
iii. Other Factors Impacting the Waiver Decision
Dragon's mitigation measures were another factor that influenced
the FAA's analysis with regard to whether a waiver would jeopardize
public health and safety and safety of property. As stated above, the
Dragon capsule employs numerous risk mitigation measures to reduce the
risk to the public from the launch of Falcon 9 and reentry of Dragon.
The FAA has taken particular notice of the way in which Dragon's
electrical power system (batteries), flight computer, and propulsion
system will reduce risk to the public. For instance, Dragon has more
than four times the propellant needed for a safe reentry in the target
area. The additional propellant increases the probability that Dragon
will land in its nominal target area instead of a population center.
Dragon also has three parachutes, which decrease risk to the public
because only one of these parachutes is necessary for a low impact
landing. The additional parachutes reduce the chance that Dragon will
crash into the ground while attempting to land.
SpaceX has also designed the Dragon reentry vehicle to vent
propellants in the case of an aborted or off-nominal reentry. This
mitigation measure greatly reduces the risk to the public because it
allows Dragon to safely dispose of hazardous propellant materials if
something should go wrong with the mission.
As a result of Dragon's mitigation measures, as well as the other
considerations discussed above, the FAA has determined that granting a
waiver in this case would not jeopardize public health and safety or
safety of property.
B. National Security and Foreign Policy Implications
The FAA has identified no national security or foreign policy
implications associated with granting this waiver.
C. Public Interest
Two of the public policy goals of Chapter 701 are: (1) To promote
economic growth and entrepreneurial activity through use of the space
environment; and (2) to encourage the United States private sector to
provide launch and reentry vehicles and associated services. 49 U.S.C.
70101(b)(1) and (2). Here, granting this waiver is consistent with the
public interest goals articulated by Chapter 701.
A goal of the COTS program's mission is to ultimately develop the
capability to resupply the International Space Station. SpaceX's
demonstration launch of Falcon 9 and reentry of Dragon is a step toward
achieving that goal. This demonstration launch is important in light of
the fact that the U.S. Government is ending the Space Shuttle Program
and NASA plans to rely upon its COTS Program to develop a robust
domestic commercial space transportation capability. This capability
will provide the United States with the ability to resupply the
International Space Station. As such, granting SpaceX's waiver request
will be consistent with Chapter 701's policy goals by: (1) Promoting
SpaceX's entrepreneurial activity in the space environment; and (2)
encouraging a private U.S. company to develop and launch a launch
vehicle (Falcon 9) and a reentry vehicle (Dragon).
Summary and Conclusion
A waiver will not jeopardize public health and safety or safety of
property because: (1) The risk associated with the launch of Falcon 9
and the risk associated with the reentry of Dragon are each under an
Ec of 30 x 10-6; and (2) the Dragon capsule
employs numerous risk mitigation measures including an in-orbit health
check. The waiver also will not jeopardize national security and
foreign policy interests of the United States. A waiver is in the
public interest because it furthers the statutory goals of Chapter 701.
For the foregoing reasons, the FAA has waived the restriction that the
combined risk to the public from the launch of Falcon 9 and reentry of
Dragon cannot exceed an expected average number of 0.00003 casualties
(30 x 10-6) from debris.
Issued in Washington, DC, on November 30, 2010.
Commercial Space Transportation, Licensing and Safety Division Manager.
[FR Doc. 2010-30402 Filed 12-3-10; 8:45 am]
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