Experimental Permits for Reusable Suborbital Rockets, 16251-16273 [06-3137]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Proposed Rules]
[Pages 16251-16273]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3137]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 401, 404, 405, 406, 413, 420, 431, 437

[Docket No. FAA-2006-24197]
RIN 2120-AI56


Experimental Permits for Reusable Suborbital Rockets

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Federal Aviation Administration (FAA) proposes to amend 
its commercial space transportation regulations under the Commercial 
Space Launch Amendments Act of 2004. The FAA proposes application 
requirements for an operator of a reusable suborbital rocket to obtain 
an experimental permit. The FAA also proposes operating requirements 
and restrictions on launch and reentry of reusable suborbital rockets 
operated under a permit.

DATES: Send your comments on or before May 30, 2006.

ADDRESSES: You may send comments identified by Docket Number FAA-2006-
24197 using any of the following methods:
     DOT Docket Web site: Go to https://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide rulemaking Web site: Go to https://
www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
https://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
https://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Randy Repcheck, Office of Commercial 
Space Transportation, Systems Engineering and Training Division, AST-
300, Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591; telephone (202) 267-8760; facsimile (202) 267-
5463, e-mail randy.repcheck@faa.gov. For legal information, contact 
Laura Montgomery, Senior Attorney, Office of the Chief Counsel, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-3150; facsimile (202) 267-7971, e-mail 
laura.montgomery@faa.gov.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. We ask that you send us two copies of written 
comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the Web address in the ADDRESSES section.
    Privacy Act: Using the search function of our docket Web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
https://dms.dot.gov.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:

[[Page 16252]]

    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (https://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at https://
www.faa.gov/regulations_policies; or
    (3) Accessing the Government Printing Office's Web page at https://
www.gpoaccess.gov/fr/.
    You can also get a copy by sending 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 docket number, notice number, or amendment number 
of this rulemaking.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding space transportation 
safety is found under the general rulemaking authority, 49 U.S.C. 
322(a), of the Secretary of Transportation to carry out 49 U.S.C. 
Subtitle IX, chapter 701, 49 U.S.C. 70101-70121 (Chapter 701). 
Additionally, the recently enacted Commercial Space Launch Amendments 
Act of 2004 (the CSLAA) mandates this rulemaking through section 70105, 
which creates the FAA's new permit authority, and section 70120, which 
requires that this rulemaking be complete by June 23, 2006. If the FAA 
does not issue a final rule by December 23, 2007, Congress prohibits 
the FAA from issuing any permits for launch or reentry until the final 
regulations are issued.

Background

    Chapter 701 authorizes the Secretary of Transportation and, through 
delegations, the FAA's Associate Administrator for Commercial Space 
Transportation, to oversee, license, and regulate both launches and 
reentries of launch and reentry vehicles, and the operation of launch 
and reentry sites when carried out by U.S. citizens or within the 
United States. 49 U.S.C. 70104, 70105; U.S. Federal Aviation 
Administration, Commercial Space Transportation Delegations of 
Authority, N1100.240 (Nov. 21, 1995). Chapter 701 directs the FAA to 
exercise this responsibility consistent with public health and safety, 
safety of property, and the national security and foreign policy 
interests of the United States, and to encourage, facilitate, and 
promote commercial space launch and reentry by the private sector. 49 
U.S.C. 70103, 70105.
    On December 23, 2004, President Bush signed into law the Commercial 
Space Launch Amendments Act of 2004 (CSLAA). The CSLAA changes current 
law in several significant ways. One such change, which establishes an 
experimental permit regime for developmental reusable suborbital 
rockets, is the subject of this rulemaking. The FAA is implementing 
other provisions of the CSLAA in a companion rulemaking entitled, 
``Human Space Flight Requirements for Crew and Space Flight 
Participants.''
    A permit is available as an alternative to licensing for operators 
of reusable suborbital rockets. The CSLAA defines a suborbital rocket 
as a vehicle, rocket-propelled in whole or in part, intended for flight 
on a suborbital trajectory, and the thrust of which is greater than its 
lift for the majority of the rocket-powered portion of ascent. 49 
U.S.C. 70102. To be eligible for an experimental permit, a reusable 
suborbital rocket must be flown for the following purposes:
     Research and development to test new design concepts, new 
equipment, or new operating techniques,
     Showing compliance with requirements as part of the 
process for obtaining a license under Chapter 701, or
     Crew training before obtaining a license for a launch or 
reentry using the design of the rocket for which the permit would be 
issued.\1\
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    \1\ The CSLAA defines crew as any employee of a licensee or 
transferee, or of a contractor or subcontractor of a licensee or 
transferee, who performs activities in the course of that employment 
directly relating to the launch, reentry, or other operation of or 
in a launch vehicle or reentry vehicle that carries human beings. 49 
U.S.C. 70102.

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49 U.S.C. 70105a(d).

    The reusable suborbital rocket must also be flown on suborbital 
trajectory, which the CSLAA defines as the intentional flight path of a 
launch vehicle, reentry vehicle, or any portion thereof, whose vacuum 
instantaneous impact point (the location on Earth where a vehicle would 
impact if it were to fail, calculated in the absence of atmospheric 
drag effects) does not leave the surface of the Earth. 49 U.S.C. 70102.
    For operators of airplane-like vehicles, the CSLAA's definitions of 
suborbital rocket and suborbital trajectory establish the circumstances 
under which the operator will be required to conduct vehicle flights 
under an experimental permit or launch license, rather than through a 
special airworthiness certificate in the experimental category. For 
some vehicles, the proposed rule would make it possible to conduct 
early test flights, including glide tests or flights under jet power 
only, under a special airworthiness certificate, prior to transitioning 
to an experimental permit. The FAA will make the authorization process 
for operators of these vehicles as seamless as possible.

References

    The FAA has cited the following references in this NPRM. Copies of 
each have been placed in the docket.

Amateur-Built Aircraft and Ultralight Flight Testing Handbook, AC 
90-89A
Department of Defense Standard Practice: System Safety, MIL-STD-882D
Equipment, Systems, and Installations in Part 23 Airplanes, AC 
23.1309
Guide to the Identification of Safety-Critical Hardware Items for 
Reusable Launch Vehicle (RLV) Developers, American Institute of 
Aeronautics and Astronautics (AIAA)
Guidelines for Experimental Permits for Reusable Suborbital Rockets, 
May, 2005
Reusable Launch and Reentry Vehicle System Safety Process, AC 
431.35-2

Current Guidelines

    Currently, the FAA issues an experimental permit on a case-by-case 
basis. To that end, the FAA issued Guidelines for Experimental Permits 
for Reusable Suborbital Rockets (May 2005) to assist applicants and the 
FAA pending implementation of regulations.

General Discussion of the Proposals

A. FAA Approach to Experimental Permits

    Congress enacted an experimental permit regime to streamline the 
authorization process for developmental reusable suborbital rockets. As 
the legislative history states, Congress intended that, ``[a]t a 
minimum, permits should be granted more quickly and with fewer 
requirements than licenses.'' H.Rep. 108.429 Sec. VII. Congressman 
Rohrabacher, chairman of the House Subcommittee on Space and 
Aeronautics, also clarified the intent of the experimental permit by 
noting that the experimental flight permits should make it easier for 
an operator to launch. Even more significantly, the House Science 
Committee questioned whether the FAA should use its traditional risk 
measure of expected casualty when issuing permits.\2\
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    \2\ The CSLAA shares legislative history with H.R. 3752, for 
which the House prepared a conference report, H. Rep. 108-429. 
Although the Senate made significant changes to this bill, and no 
conference report was prepared, the original House report remains 
helpful.
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    Congress intends an experimental permit regime to reduce the 
regulatory burden on developers of reusable suborbital rockets. 
Accordingly, while still maintaining public safety, the FAA proposes to 
reduce the number of

[[Page 16253]]

requirements for a permit when compared to a license, and to model its 
experimental permit regime for space transportation on the special 
airworthiness certificates granted to experimental aircraft. The FAA 
does not propose to require satisfaction of its risk criteria for a 
permit as it does for a license. Likewise, of all the system safety 
management and engineering requirements the FAA requires for a license, 
the FAA only proposes to require a hazard analysis to obtain a permit. 
Containing a vehicle within an operating area, as proposed here, is 
similar to the approach used in granting special airworthiness 
certificates to experimental aircraft.
    The FAA examined, for purposes of streamlining, the three-pronged 
approach currently used to license the launch of reusable launch 
vehicles (RLVs). The safety strategy for licensing launch and reentry 
consists of the following three interdependent safety requirements:
    1. Quantified limits on individual and collective risk to the 
general public,
    2. A system safety process that requires an operator to use a 
logical, disciplined approach to identifying hazards and mitigating and 
removing risks,\3\ and
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    \3\ A hazard is an activity or condition that poses a threat. 
Risk is the potential for an undesirable consequence.
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    3. Implementation of operating requirements.
    Just as system redundancy may compensate for failure or flawed 
design or performance, the three-pronged approach protects the health 
and safety of the general public through these different yet 
interrelated means. The FAA proposes to apply a simplified version of 
this approach as discussed below.
1. Quantitative Risk Analysis
    Under a launch license, a licensee must demonstrate that the risk 
from a launch falls below specified collective and individual risk 
criteria. The FAA proposes to relieve a launch operator from the 
requirement to calculate collective or individual risk under an 
experimental permit. An applicant would instead propose one or more 
operating areas that meet qualitative criteria.
    Under the license regime, an applicant must demonstrate to the FAA 
that its launch will meet certain individual and collective risk 
criteria. Individual risk is the risk to an individual member of the 
public. Under a license, the risk level to an individual must not 
exceed 1 x 10-\6\ per mission. Collective risk is the risk 
to a population. Under a license, the risk level to the collective 
members of the public exposed to vehicle debris impact hazards must not 
exceed an expected average number of 30 x 10-\6\ casualties 
per mission (commonly referred to as expected casualty).
    Risk analysis accounts for vehicle reliability, effective casualty 
areas, the probability of impact, populations at risk, and potential 
consequences. The strength of any quantitative risk analysis lies not 
only in the resulting values, but also in the decisions reached during 
the analysis, where the decisions limit risk to the public. In that 
regard, a quantitative risk criterion may serve as an indicator of when 
sufficient mitigation measures and operating requirements have been 
applied. However, uncertainties in launch vehicle reliability, 
operating environments, and the extent of the consequences of a failure 
prevent such a straightforward application when addressing research, 
development, and flight-testing of new technologies, such as 
developmental reusable suborbital rockets. Because of the 
uncertainties, any risk analysis would need to include conservative 
assumptions in order to demonstrate that the criteria are met. Greater 
knowledge and certainty about expendable launch vehicle (ELV) 
reliability and operations, coupled with the benefits of operating from 
coastal sites, allows ELVs to be held to a criterion of 30 casualties 
per one million launches.
    Most RLVs are intended to launch from inland launch sites near 
significant populations, such as airports. Even though the reusable 
suborbital rockets currently proposed are typically much smaller than 
their expendable counterparts,\4\ reusable launch vehicles operating 
from these sites under the same risk criterion would be required to 
have a lower probability of failure than those expendable counterparts. 
Preliminary calculations using the characteristics of several proposed 
and operational suborbital vehicles have shown that a probability of 
failure of 5% or less would have to be achieved to meet the criterion 
of 30 in one million. Unlike with ELVs, which have a historical 
probability of failure of approximately 10%, there is little 
operational experience and data available to support or refute that low 
a value for probability of failure.
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    \4\ Vehicle size is relevant to risk because a smaller vehicle, 
in general, will have less of a potential for harm to people and 
property on the ground than a larger vehicle.
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    The FAA considered requiring the operators of reusable suborbital 
rockets to produce the data needed to demonstrate the necessary 
probability of failure. This is the current approach for vehicles 
applying for a launch license. However, the data necessary to determine 
reliability does not yet exist for developmental suborbital rockets. 
This reliability data typically can be obtained by the very research 
and development testing that Congress intends permits to enable.
    Alternatively, the FAA could have increased the risk threshold for 
research and development vehicles to reflect the lack of data. In an 
effort to determine a new risk criterion, the FAA researched the risks 
from similar activities, such as the risks to persons living near 
airports. Our research concluded that the involuntary risks to people 
living near a major U.S. airport are most similar to the risks to 
people living near a spaceport. However, in order to do a true one-to-
one comparison, the empirical involuntary risks data, expressed as an 
annual risk to individuals living near a major U.S. airport, would have 
to be converted to a per-mission collective risk.
    Converting annual individual risk data into a per-mission 
collective risk criterion for permitted activities is sensitive to the 
assumptions applied in the conversion. In particular, the flight rate 
(the number of flights in a given time period) of permitted vehicles 
and the extent of the population exposed are difficult to predict. 
Because of this sensitivity, the FAA could reasonably propose risk 
values spanning an order of magnitude from the same underlying data. 
Such uncertainty in the proper value has the potential for producing a 
value that would be too easy to meet, thus failing to require the 
safety decisions that make quantitative risk analyses so valuable, and 
perhaps leading to a false sense of safety. On the other hand, if the 
value was too difficult to meet, it could create a regulatory 
environment that would be too burdensome to be conducive to research 
and development activities. Accordingly, the FAA chose not to pursue a 
new criterion for allowable quantitative risk in the absence of 
conclusive data to support a particular value.
    Nonetheless, quantitative risk analyses facilitate safety decision-
making, and for that reason, the FAA will continue to conduct these 
quantitative risk analyses for the industry as a whole as well as 
recommend that launch operators perform these analyses for their own 
use. The FAA will continue to conduct

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these analyses to provide further insight into safety issues, identify 
trends, and collect data that may assist in defining future criteria. 
In addition, the FAA will provide guidance and tools to assist the 
industry in performing its own quantitative analyses.
2. System Safety
    To obtain an experimental permit, the FAA proposes that an 
applicant be required only to conduct a hazard analysis instead of, as 
for a launch license, establishing a comprehensive system safety 
program consisting of both system safety management and system safety 
engineering.\5\ A hazard analysis, which is typically part of a 
detailed system safety engineering process, identifies and 
characterizes hazards and qualitatively assesses risks. A license 
applicant uses this analysis to identify risk elimination and 
mitigation measures to reduce risk to an acceptable level.
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    \5\ The mitigation measures and safety requirements resulting 
from systematic approaches to identifying and reducing risk serve to 
protect individuals and society through prudent safety measures that 
assist in preventing mishaps.
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    The FAA realizes that by not requiring system safety engineering 
methods, other than a hazard analysis, some hazards may not be 
uncovered. A more rigorous approach would entail both ``bottoms-up'' 
subsystem analyses, such as a failure modes, effects, and criticality 
analysis, and ``top-down'' system analyses such as fault tree analysis 
and event tree analysis. However, containment within an FAA-approved 
operating area will ameliorate many of these unknown risks.
    Unlike the system safety management requirements of a license, the 
FAA does not propose explicit requirements for documenting the system 
safety organization or for identifying specific safety personnel in the 
permit regime. Pioneers within the commercial RLV industry need freedom 
to organize their companies in various innovative ways to conduct 
launches. In these organizations the emphasis should not be on the 
management structure but on the commitment to safety throughout the 
organization. Effective safety organizations are created not only by 
identifying individuals responsible for safety, but also through 
developing a strong and effective safety culture. In a strong safety 
culture, responsibility for safety is spread throughout the 
organization, upper-level management is committed to public safety, 
employees have a voice in safety decisions, and safe behavior is 
rewarded. Therefore, a permittee should establish an organization that 
has a strong safety culture to achieve safe operations.
    An operator with a strong safety culture would incorporate prudent 
approaches to ensuring safe flight based on lessons learned from launch 
industry mishaps and experimental aircraft testing and inspection, such 
as those described in AC 90-89A, ``Amateur-Built Aircraft and 
Ultralight Flight Testing Handbook.'' Permittees should familiarize 
themselves with and implement the guidance that the FAA has available 
for system safety management, particularly AC 431.35-2, ``Reusable 
Launch and Reentry Vehicle System Safety Process.'' Copies of these 
documents have been placed in the docket for this rulemaking.
    The FAA may reevaluate the need for prescriptive system safety 
management requirements if there are weaknesses in the industry's 
safety culture.
3. Operating Requirements
    The FAA proposes only those operating requirements that directly 
involve activities authorized under an experimental permit. To operate 
under a license, a licensee must comply with the operating requirements 
of part 431.\6\ The FAA examined each operating requirement under part 
431, as well as operating requirements derived from lessons learned 
from recent RLV launches conducted under a license. Many part 431 
operating requirements involve preparatory activities. Preparatory 
activities would not be addressed in a permit application. For example, 
the FAA would still require flight rules; however, the FAA proposes not 
to require a mission readiness review where, among other things, flight 
rules are discussed. Operating requirements are discussed in detail 
later in this preamble.
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    \6\ Operating requirements are often derived from the system 
safety process. Others, required by regulation, are based on 
historical best practices that mitigate the inherent uncertainty in 
the system safety process.
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4. Effect of a Less Burdensome Permitting Regime
    The FAA's proposed permitting regime is designed so that a 
permittee will implement adequate safety measures. Ultimately, however, 
public health and safety will depend on each operator adopting a strong 
safety culture and using proven system safety principles that go beyond 
the FAA's regulatory requirements.
    Imposing fewer requirements on permittees than licensees creates 
the potential for an increase in risk to the public compared to a 
similar launch or reentry licensed under part 431 or part 435. The FAA 
will carefully monitor the safety of space flight that takes place 
under a permit to ensure that the proposed approach does not result in 
inappropriate levels of risk. The FAA requests public comment on this 
approach, particularly the exclusion of quantitative risk criteria, the 
streamlining of system safety management and engineering, and the 
streamlined operating requirements.

B. Organization and Requirements of Proposed Rule

    The FAA proposes a new part 437 with requirements for obtaining and 
maintaining an experimental permit. The proposed rule has been 
organized into four subparts. Subpart A would contain general 
information about an experimental permit, including eligibility, scope, 
and duration. Subpart B would contain demonstration and information 
requirements that an applicant must meet to obtain an experimental 
permit. The FAA would use selected information submitted for subpart B 
for an interagency review that allows government agencies such as the 
Department of Defense and the Department of State to examine the 
proposed mission from their unique perspectives. Subpart C would 
contain the safety standards with which a permittee would have to 
comply while conducting permitted activities.
    Subparts B and C are necessarily interrelated. Subpart B would 
require a permit applicant to demonstrate how it would comply with 
certain subpart C requirements. An applicant would have to show how it 
would comply with the general performance-based safety standards 
proposed in subpart C, but would not have to demonstrate compliance 
with prescriptive subpart C requirements. For example, proposed rest 
rules for vehicle safety operations personnel are prescriptive and very 
specific. The FAA would not require an applicant to demonstrate in its 
application how it will implement those rules. Instead, the FAA would 
monitor the permit holder to verify that the permit holder is meeting 
the subpart C requirements. This should further ease the application 
burden in accordance with the streamlining goals of the CSLAA.
    Last, subpart D would contain other responsibilities that would 
apply to a permittee. This subpart would include requirements for the 
continuing accuracy of the permit application, allowable design 
changes, maintaining records related to the permit application and 
operations, pre-flight reporting, for-hire prohibition, and compliance 
monitoring.

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1. Subpart A--General Information
    Subpart A would contain rules concerning the scope and organization 
of part 437, definitions, eligibility for an experimental permit, the 
scope of an experimental permit, issuance of an experimental permit, 
and the duration of an experimental permit. The duration of a permit 
would be one year from the date of issuance. A permittee could conduct 
an unlimited number of launches and reentries for a particular 
suborbital rocket design during that time. A permittee would be able to 
apply to renew its permit on a yearly basis. Subpart A would also note 
that the FAA may modify an experimental permit at any time during its 
term, that an experimental permit is not transferable, and that the 
issuance of an experimental permit does not relieve a permittee of its 
obligation to comply with any requirement of law that applies to its 
activities.
2. Subpart B--Application Requirements

a. Requirements for an Experimental Permit

    This subpart would require an applicant to submit a program 
description, flight test plan, and operational safety documentation. 
The program description would include a description of the purpose for 
which the reusable suborbital rocket would be operated, dimensions, 
weights, thrust profiles, payloads, propellants, hazardous materials, 
and systems. An applicant would also have to describe any foreign 
ownership.
    The flight test plan would include a description of the applicant's 
proposed flight test program, including estimated number of flights, 
key flight-safety events, and the maximum altitude of the reusable 
suborbital rocket. An applicant would have to propose and obtain FAA 
approval of an operating area for its flight tests.
    Through operational safety documentation, an applicant would show 
how it would comply with the general performance standards proposed in 
subpart C.

b. Environmental Considerations

    The FAA proposes to require an applicant to provide sufficient 
information for the FAA to analyze the environmental impacts associated 
with issuing reusable suborbital rocket launch and reentry permits. The 
information provided by an applicant would be used by the FAA to 
complete an appropriate environmental analysis and associated 
documentation to comply with the statutory requirements that address 
public health and safety (e.g., the Clean Air Act), as well as the 
requirements of the National Environmental Policy Act, 42 U.S.C. 4321 
et seq. (NEPA), and the Council on Environmental Quality Regulations 
for Implementing the Procedural Provisions of the National 
Environmental Policy Act, 40 CFR parts 1500-1508. These requirements 
would be similar to those associated with a license, but the FAA is 
preparing a means of lessening the burden on a permit applicant.
    The FAA is developing a programmatic environmental impact statement 
(PEIS) concurrent with this rulemaking. The PEIS will analyze potential 
environmental impacts (impacts on the human environment include social, 
economic, cultural and natural environmental impacts) associated with 
experimental permitting of launches of reusable suborbital rockets. The 
PEIS will address environmental issues, including potential impacts on 
human health and safety, and provide information common to all permits. 
The PEIS is designed to allow an individual applicant's environmental 
analysis to focus on the environmental effects specific to the permit 
application for launch and reentry of the applicant's reusable 
suborbital rocket. The FAA will use the PEIS and subsequent permit 
specific analyses to determine the appropriate level of NEPA analysis 
and documentation that can be used to substantiate FAA action on 
permits. The PEIS will assist the FAA by compiling trend data and 
focusing environmental monitoring efforts in the coming years.
    An applicant will use the PEIS to develop analyses specific to its 
subsequent permit application. The FAA will obtain, use, and refine the 
data and information to meet the FAA's obligations under the National 
Environmental Policy Act and Chapter 701 when issuing permits 
authorizing reusable suborbital rocket launches and reentries.

c. Financial Responsibility

    With the exception of eligibility for indemnification, the 
financial responsibility regime of Chapter 701 applies to permittees. 
Therefore, a permittee under this part would have to comply with the 
financial responsibility requirements of part 440 and as specified in 
its permit. Under Chapter 701, Congress establishes risk sharing for 
licensees by providing for the conditional payment of claims by the 
United States Government of those claims in excess of the required 
financial responsibility up to $1,500,000,000, as adjusted for 
inflation, for third party liability. After those limits, the licensee 
is responsible for all claims. The U.S. Government waives its claims 
for Government range property damage in excess of required maximum 
probable loss (MPL)-based property insurance.
    Under a permit, the CSLAA provides that the Government is 
responsible for claims in excess of the required insurance amount for 
Government range property claims and the holder of the permit is 
responsible for all other claims. In short, the Government property 
provisions remain the same for both licensees and permittees. A 
licensee remains eligible for indemnification from third party claims; 
however, under the CLSAA a permittee is not. An applicant would provide 
the information required by part 3 of appendix A of part 440 for the 
FAA to conduct a maximum probable loss analysis.

d. Operation of a Private Launch Site

    Under Sec.  401.5 the operation of a launch site means the conduct 
of approved safety operations at a permanent site to support the 
launching of vehicles and payloads. A reusable suborbital rocket 
operator operating a private launch site that contains permanent 
facilities or supports continuous operations would have to obtain a 
launch site operator license in accordance with part 420, which 
contains licensing and operational requirements. Compliance with part 
420 would require an explosive site plan and lightning protection and 
compliance with part 437.
    Requiring a launch site operator license marks a slight shift from 
FAA policy to date. In the past, the FAA announced that a launch 
operator who operated a private site for its own launches did not need 
a license to operate a launch site. This is because its launch license 
would cover the safety issues associated with operating the launch 
site. Licensing and Safety Requirements for Operation of a Launch Site, 
65 FR 62812, 62815 (October 19, 2000). The FAA has never issued such a 
license,\7\ but the FAA finds that it

[[Page 16256]]

must revisit this issue for both licenses and permits. The existing 
approach may leave safety issues unaddressed. A launch license would 
not, after all, cover the safety issues associated with operating a 
launch site, and perhaps the FAA should not have said so when 
promulgating part 420. Part 420, which governs operating a launch site, 
contains requirements for the storage of explosives and for mitigating 
lightning effects. Those requirements are necessary regardless of 
whether a launch vehicle is present at the launch site. Additionally, 
because the scope of a permit may be even more narrow than the scope of 
a license, the FAA could fail to address other safety issues as well.
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    \7\ Sea Launch offers its own unique circumstances. Because its 
launches take place outside the United States, Chapter 701 does not 
require that Sea Launch's launch license encompass activities in 
preparation for flight. Accordingly, Sea Launch's license did not 
cover activities in preparation for flight at the platform in the 
Pacific Ocean. Nor did the FAA require Sea Launch to obtain a 
license to operate a launch site. This determination was correct, in 
light of the discussion above, because Sea Launch was not conducting 
continuous operations or establishing permanent facilities at its 
launch point. Both the ship and the launch platform depart after 
each launch. Although the FAA has said that Sea Launch did not 
require a site license because it was not offering its site to 
others, the lack of permanence provides a better reason.
---------------------------------------------------------------------------

    When it issued part 420, the FAA noted in its discussion of the new 
requirements, if not in the regulations themselves, that ``[a] launch 
operator proposing to launch from its own launch site need only obtain 
a launch license because a launch license will address safety issues 
related to a specific launch and because a launch license encompasses 
ground operations.'' 65 FR at 62815. The FAA did not memorialize this 
exception in section 420.3, which describes those to whom part 420 
applies, because the FAA anticipated that there would be select 
provisions in part 420 which the FAA would apply to a launch licensee 
through its license. Upon further reflection, the FAA proposes to 
abandon that approach as an incomplete method of fulfilling its mandate 
to oversee the operation of a launch site.
    The existing approach neglects to take into account safety 
considerations that fall outside the scope of a launch license. Under 
49 U.S.C. 70102(4), Congress defines launch to include activities 
involved in the preparation of a launch vehicle for launch when those 
activities take place at a launch site in the United States. This means 
that when a launch vehicle is not present at a launch site, the other 
activities at a launch site are not licensed. Some of those activities, 
such as the storage of explosives and mitigating the effects of 
lightning, create potential hazards addressed by part 420.
    The question of whether a license to operate a launch site is 
necessary at a private site is especially relevant now because there 
are operators who hope to operate under an experimental permit on 
private land without having to obtain a license to operate a launch 
site. Under the existing definition of operation of a launch site, it 
may not be necessary in all cases for launch operators at a private 
site to obtain a license to operate the site. The FAA defines operation 
of a launch site as the conduct of approved safety operations at a 
permanent site to support the launching of vehicles and payloads. 14 
CFR 401.5. The FAA recently interpreted this to mean that a launch 
operator proposing to launch from a private site would not require a 
launch site operator license. See FAA Interpretation to Armadillo 
Aerospace (February 24, 2006). Because Armadillo planned to use a 
privately owned site intermittently, and build no infrastructure, it 
would be using a temporary site and thus not require a license to 
operate a launch site. The other avenue that must be explored is what 
it means to ``conduct approved safety operations.'' When promulgating 
section 401.5, the Department of Transportation observed that ``the 
operation of a launch site involves continuing operations at a 
permanent location.'' Licensing Regulations, 64 FR 11004, 1007 (April 
4, 1988). This suggests that approved safety operations must be 
continuous. Although the 1988 rulemaking that created this test did not 
define or discuss what the agency meant by approved safety operations, 
the FAA has given flesh to these terms in later years. In 2000, when 
the FAA issued its regulations governing licensing the operation of a 
launch site, the FAA noted that, in addition to explosive siting and 
lightning mitigation requirements, ``[t]he operational requirements * * 
* address, among other things, control of public access, [and] 
scheduling of operations at the site.'' 65 FR at 62834. The FAA expects 
to further refine the meaning of operation as future questions arise.

e. Human Space Flight

    An applicant proposing to conduct a reusable suborbital rocket 
launch or reentry with flight crew or a space flight participant on 
board would have to demonstrate compliance with part 460, Human Space 
Flight Requirements, which is being proposed under a separate notice.

f. Inspection Before Permit Issuance

    Before issuing a permit, an FAA representative would inspect a 
built vehicle to ensure compliance with application representations. 
For example, the FAA would examine systems required for maintaining the 
vehicle's instantaneous impact point (IIP) within an operating area. As 
with an experimental aircraft, any additional reusable suborbital 
rocket of the same design could be launched or reentered under the 
permit after inspection by the FAA.

g. Other Requirements

    The FAA may require additional analyses, information, or agreements 
if necessary to protect public health and safety, safety of property, 
and national security and foreign policy interests of the United 
States. This option is necessary because future reusable suborbital 
rocket concepts may entail unprecedented and unforeseen 
characteristics. The regulations proposed in this NPRM may not 
adequately cover all characteristics relevant to public safety and 
other U.S. interests.
3. Subpart C--Safety Requirements

a. Vehicle Safety Operations Personnel Rest Rules

    The FAA would require that vehicle safety operations personnel 
adhere to specified rest rules. Under current regulations, vehicle 
safety operations personnel are those persons whose job performance is 
critical to public health and safety or the safety of property during 
RLV or reentry operations. They include personnel on board the vehicle 
and on the ground.
    Risk elimination and mitigation measures, no matter how well 
thought out or implemented, can be undone if personnel performing 
safety-critical functions are not physically and mentally capable of 
performing their assigned function. The Federal government and private 
entities performing launches have historically imposed rest rules for 
safety-critical personnel.

b. Pre-Flight and Post-Flight Operations

    A permittee would have to protect the public from adverse effects 
of hazardous operations and systems associated with preparing a 
permitted vehicle for flight at a launch site in the United States, and 
with returning the vehicle to a safe condition after flight. A 
permittee would have to establish a safety clear zone large enough to 
contain the adverse effects of each hazardous operation. A safety clear 
zone would, for example, have to contain the hazards of propulsion 
system testing or propellant loading. A permittee would have to verify 
that the public was outside that safety clear zone before and during a 
hazardous operation. Systems such as high pressure gas facilities and 
facilities for storing liquid and solid propellant are hazardous even 
when operations are not being performed. An applicant would have to 
demonstrate in its

[[Page 16257]]

application to the FAA how it would meet these requirements.
    The ground activities covered by these requirements would depend on 
the scope of activities covered by an experimental permit. For launch 
of expendable launch vehicles, the FAA defines launch to begin with the 
arrival of a vehicle at a launch site in the United States. 14 CFR 
401.5. The FAA proposes to change that definition for reusable 
suborbital rockets operating under a permit. The FAA proposes to use a 
four-part test to determine the scope of a permit. The House Science 
Committee originated the four-part test in 1995, as guidance to the FAA 
to assist it in defining a ``launch'' for purposes of exercising 
licensing jurisdiction under Chapter 701. H.R. Rep. No. 233, 104th 
Cong., 1st Sess., at 60 (1995). The Committee report recommended 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 the FAA's regulatory 
oversight under 49 U.S.C. chapter 701.
    The same committee later explained that this test was the basis for 
changing the definition of ``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.'' 49 U.S.C. 70102(3).
    Although the four-part test is not a statutory requirement, the FAA 
believes that it provides a rational approach to determining whether a 
pre-flight activity should be authorized under a permit.

c. Hazard Analysis

    An applicant must perform a hazard analysis and provide the results 
to the FAA. A hazard analysis is an integral part of a system safety 
engineering process, which applies scientific and engineering 
principles necessary to identify and eliminate hazards and reduce the 
associated risk to the public. Typical elements of a hazard analysis 
include:
     Identifying and describing hazards,
     Assessing risk using qualitative severity and likelihood 
levels,
     Identifying and describing risk elimination and mitigation 
measures to reduce the risk to acceptable levels, as defined below, and
     Demonstrating that the risk elimination and mitigation 
measures are correct, complete, and achieve an acceptable reduction in 
risk through validation and verification.
    The FAA proposes the following criteria to determine the 
acceptability of the risks:
     The occurrence of any hazardous condition that may cause 
death or serious injury to the public must be extremely unlikely, and
     The likelihood of an occurrence of any hazardous condition 
that may cause major property damage to the public, major safety-
critical system damage or reduced capability, decreased safety margins, 
or increased workload must be remote.
    In developing qualitative criteria to assess risk, the FAA examined 
industry practice and existing government standards. The FAA based its 
criteria on MIL-STD-882D, ``Department of Defense Standard Practice: 
System Safety,'' and FAA AC 23.1309, ``Equipment, Systems, and 
Installations in Part 23 Airplanes.'' The U.S. Department of Defense, 
the National Aeronautics and Space Administration, and the aerospace 
industry have successfully used hazard analyses for decades to reduce 
risks to acceptable levels. The FAA proposes that an operator provide 
the results of the hazard analysis to FAA during the application 
process. An acceptable hazard analysis could be a Preliminary Hazard 
Analysis, as described in MIL-STD-882D, a Failure Modes, Effects, and 
Criticality Analysis, as described in FAA's ``Guide to Reusable Launch 
and Reentry Vehicle Reliability Analysis'' and AC 431.35-2, or a 
Functional Hazard Analysis, as described in AC 23.1309. Other analyses 
that provide an equivalent level of fidelity may be acceptable.
    A key step in the hazard analysis process is to identify and 
describe either risk elimination or risk mitigation measures. The 
recommended order of precedence for eliminating or mitigating risk is 
as follows:
     Design for minimum risk. The first priority should be to 
eliminate risks through appropriate design or operation choices.
     Incorporate safety devices. If risks cannot be eliminated 
through design or operation selection, an operator should reduce risks 
through the use of active and passive safety devices. The operator 
should make provisions for periodic functional checks of safety 
devices.
     Provide warning devices. When neither design nor safety 
devices can effectively eliminate identified risks or adequately reduce 
risks, an operator should use devices to detect the condition and 
produce an adequate warning signal. The operator should design warning 
signals and their application to minimize the likelihood of 
inappropriate human reaction and response.
     Develop and implement procedures and training. When it is 
impractical to eliminate risks through design selection or specific 
safety and warning devices, an applicant should develop and implement 
procedures and training.
    Selection of a risk elimination or mitigation approach is usually 
based on a number of factors, such as the type of operation, the 
feasibility of implementing the approach, the effectiveness of the 
approach, and the impact on system performance. The applicant's 
analysis should also consider whether the risk mitigation measures 
introduce new hazards.
    The mitigation measures of procedures and training deserve special 
mention. These may include the following:
     Conducting dress rehearsals to ensure crew readiness under 
nominal and non-nominal flight conditions;
     Creating and using current and consistent checklists that 
ensure safe conduct of flight operations during nominal and non-nominal 
flights;
     Consolidating flight rules, procedures, checklists, 
contingency abort plans, and emergency plans in a safety directive, 
notebook, or other compilation;
     Establishing communication protocols, including defined 
radio communications terminology and a common intercom channel for 
communications; and
     Conducting flight readiness reviews.
    To allow flexibility in reducing risk and to encourage innovation 
in improving safety, the FAA is not mandating any one particular 
approach, such as checklists or dress rehearsals. Nevertheless, the FAA 
notes that these could become permit requirements if the 
characteristics of a permittee's operations make them necessary for 
safety. For example, a permittee conducting a procedurally simple 
operation might not need to conduct dress rehearsals. A permittee with 
a highly complex operation might have to do so.

d. Operating Area Containment

    The FAA would require that a permittee operate its reusable 
suborbital rocket such that its IIP remained within an operating area 
and outside any

[[Page 16258]]

exclusion areas. An operating area would be a three-dimensional region 
where permitted flights could take place. The FAA would approve an 
operating area based on the following criteria:
     No densely populated area could be present within or 
adjacent to an operating area,
     An operating area would have to be large enough to contain 
each of an applicant's planned trajectories, accounting for expected 
dispersions,
     An operating area would have to contain enough unpopulated 
or sparsely populated area to perform key flight-safety events, and
     The operating area could not contain significant 
automobile traffic, railway traffic, waterborne vessel traffic, or 
large concentrations of members of the public.
    The FAA would use the above criteria to prohibit the operation of 
reusable suborbital rockets over areas where the consequences of an 
uncontrolled impact of the vehicle or its debris would be catastrophic. 
Given the number of people in a densely populated area and their 
proximity to each other, the likelihood of multiple casualties from an 
uncontrolled impact of a vehicle or its debris would be much higher in 
densely populated areas than in sparsely populated areas.
    The FAA has not proposed definitions for unpopulated, sparsely 
populated, or densely populated area. The FAA does not have sufficient 
experience with reusable suborbital rocket flight activity at this time 
to define these terms. The FAA did consider, but does not propose to 
adopt, the following definitions:
    Unpopulated means devoid of people.
    Sparsely populated means a population density of less than 10 
people per square statute mile in an area of at least one square 
statute mile.
    Densely populated area means a census designated place, as defined 
by the United States Census Bureau, with a population in excess of 
100,000 people, or any area with a population density in excess of 
1,000 people per square statute mile and an area of at least one square 
statute mile.

Although proposing precise definitions may be premature, the FAA offers 
the following observations as preliminary guidance. The term 
``unpopulated'' would mean no people, period. The term ``sparsely 
populated'' suggests an area with a few scattered people where the risk 
to those few persons from the overflight of a suborbital rocket, even 
one being tested, would likely be negligible. The term ``densely 
populated area'' would have two characteristics. One would be strictly 
related to numbers of people, without regard to population density. Any 
area with 100,000 people is not a good area to test rockets. The second 
characteristic would be density--an area would have to be large enough 
to allow an applicant to find a workable operating area in certain 
parts of the country, but small enough to keep the risk to the people 
within the area negligible, given the flight constraints discussed 
below. The FAA requests comments on the definitions that it considered 
and on its preliminary observations.
    Proposed agreements between a permittee and Air Traffic Control 
would influence the size and location of the operating area. An 
operating area might also include ``exclusion areas,'' defined by the 
FAA, which would consist of areas where a reusable suborbital rocket's 
IIP could not traverse. The operating area proposed here is similar to 
that used in granting special airworthiness certificates to 
experimental aircraft, in that the FAA would allow an applicant to 
propose an area. An operator could also propose different operating 
areas for different flight tests in its application.
    During the application process, an applicant would identify and 
describe the methods and systems used to meet the requirement to 
contain its reusable suborbital rocket's IIP within the operating area 
and outside any exclusion area. Acceptable methods and systems would 
include:
     Proof of physical limitations on a vehicle's ability to 
leave the operating area, and
     Abort criteria and safety measures derived from a system 
safety process.
    Proof of physical limitations on a vehicle's ability to leave the 
operating area could be obtained through an analysis that showed that 
the maximum achievable range of the reusable suborbital rocket from the 
launch point was within the boundaries of the operating area, assuming 
the rocket flew a trajectory optimized for range and that all safety 
systems failed. Such a proof would simplify an operator's requirements 
considerably when compared to the use of active containment methods.
    An applicant could use its hazard analysis to determine safety 
measures that keep a reusable suborbital rocket's IIP within its 
operating area. Alternatively, an applicant could perform a separate 
and more comprehensive system safety analysis solely for containment. 
For example, an operator could use a hazard analysis to identify the 
safety measures necessary to avoid the hazards of a propulsion shutdown 
system not operating properly. Such a hazard analysis would use 
qualitative risk criteria approved by the FAA. An applicant could also 
use the American Institute of Aeronautics and Astronautics (AIAA) 
``Guide to the Identification of Safety-Critical Hardware Items for 
Reusable Launch Vehicle (RLV) Developers' to assist in the analysis of 
hardware. The FAA also plans to provide guidance in the future for the 
analysis of hazards created by errors in software and computing 
systems.
    Specific safety measures obtained from a system safety process 
could include a dedicated flight safety system or other safety measures 
derived from the hazard analysis that are not necessarily dedicated 
only to flight safety. A dedicated flight safety system could protect 
the public and property from harm, if a vehicle did not stay on its 
intended course, by stopping the vehicle's flight. A flight safety 
system consists of all components that provide the ability to end a 
launch vehicle's flight in a controlled manner. For example, a reusable 
suborbital rocket may use a thrust termination system in combination 
with other measures, such as propellant dumping, to keep a vehicle from 
reaching a populated area. Safety measures may also include systems and 
procedures that, while not dedicated exclusively to flight safety, help 
to protect the public. For example, an operator may choose to use a 
real-time IIP ground or cockpit display. The display may include the 
real-time IIP, and an operator would use abort criteria to assist in 
containment of the IIP.
    The FAA proposes to require an applicant to show that the system or 
method selected will contain the vehicle's IIP. That demonstration 
could include flight demonstration test data; component, system, or 
subsystem test data; inspection results; or analysis. The FAA would 
determine whether the proposed containment approach was acceptable, and 
might require more detailed analyses or verification for that 
containment approach. The FAA might also require additional safety 
measures to protect the public, such as propellant dumping to reduce 
explosive potential or fire hazards.
    Note that permits, as well as licenses, are available to the public 
on request. For permits, the FAA will publish approved operating areas 
on its web site.

e. Key Flight-Safety Event Limitations

    Operating within an acceptable operating area and implementing 
safety measures obtained from a hazard analysis are only part of what 
would be

[[Page 16259]]

necessary to maintain public safety. The FAA would also impose 
additional operating requirements for flight events with an increased 
likelihood of failure compared to other portions of flight. These 
operating requirements would include requiring an operator to perform 
key flight-safety events over unpopulated or sparsely populated areas. 
Events such as rocket engine ignition (for air-dropped and multi-mode 
propulsion vehicles), staging, and envelope expansion have historically 
had the highest probability of catastrophic failure for rocket-
propelled vehicles. In its application, an operator would have to 
identify and describe how it would keep these key flight-safety events 
over unpopulated or sparsely populated areas and demonstrate to the FAA 
that it had verified the operation of these systems.
    The FAA would also require an operator to conduct each reusable 
suborbital rocket flight so that the reentry impact point would not 
loiter over a populated area. The reentry impact point is the location 
of a reusable suborbital rocket's IIP during the period of unpowered 
suborbital flight outside the atmosphere.

f. Landing and Impact Locations

    The FAA would require an operator to use a location for nominal 
landing, any contingency abort landing, or any reusable suborbital 
rocket component impact or landing that--
     Is of sufficient size to contain an impact, including any 
debris dispersion on impact; and
     At the time of landing or impact, does not contain any 
members of the public.
    Subpart B would require an applicant to demonstrate that the 
identified sites were suitable.

g. Agreements

    To obtain a permit, the FAA would require an applicant to complete 
certain written agreements. The FAA would require that an applicant 
enter into an agreement with a Federal launch range, a licensed launch 
site operator or anyone else who provides access to and use of property 
and services required to support a permitted flight. Public safety 
related support would include the use of a local fire department for 
emergency response or a local police department for crowd control.
    If an applicant proposed to launch over water, the FAA would 
require an applicant to complete an agreement with the local United 
States Coast Guard (USCG) district to establish procedures for issuing 
a Notice to Mariners before a permitted flight. The FAA would also 
require an applicant to complete an agreement with the responsible Air 
Traffic Control authority having jurisdiction over the airspace through 
which a flight was to take place. That agreement would contain measures 
necessary to ensure the safety of aircraft, including procedures for 
notices to airmen and temporary flight restrictions. An applicant would 
not have to complete these two agreements if a Federal launch range or 
a licensed launch site operator already had agreements addressing these 
procedures in place. Federal launch ranges already coordinate these 
matters for range users. A licensed launch site operator is required, 
under part 420, to have agreements with the FAA and USCG for launches 
taking place from its launch site.

h. Collision Avoidance

    Based on an analysis of a catalog of orbiting objects performed by 
the U.S. Strategic Command (USSTRATCOM), the FAA proposes a collision 
avoidance analysis for a suborbital launch with a planned maximum 
altitude greater than 150 kilometers. The collision avoidance analysis 
would establish each period of time during which a permittee could not 
initiate flight in order to ensure that a permitted vehicle and any 
jettisoned components did not pass closer than 200 kilometers to a 
manned or mannable orbital object throughout the flight. This analysis 
would be performed by USSTRATCOM based on information provided by the 
permittee. The FAA may approve the use of an alternate separation 
distance on a case-by-case basis.

i. Tracking

    The FAA would require a permittee to operate a reusable suborbital 
rocket in a manner that provided Air Traffic Control with the real time 
position and velocity of the reusable suborbital rocket while operating 
in the National Airspace System (NAS). Air traffic controllers will 
require this information to integrate reusable suborbital rockets into 
the NAS. At this time, the FAA does not propose explicit requirements 
for the necessary tracking methods.
    The FAA would also require a permittee to operate a reusable 
suborbital rocket in a manner that provides position and velocity data 
for post-flight use. The FAA would use this data for compliance 
monitoring. The FAA would also use this data to focus on the continuous 
improvement of the safety of this industry. The CSLAA, 49 U.S.C. Sec.  
70103(c), states, ``[i]n carrying out the responsibilities under 
subsection (b), the Secretary shall encourage, facilitate, and promote 
the continuous improvement of the safety of launch vehicles designed to 
carry humans, and the Secretary may, consistent with this chapter, 
promulgate regulations to carry out this subsection.'' An applicant 
would have to demonstrate to the FAA how it would meet these tracking 
requirements in its application.

j. Communications

    The FAA would require that a permittee be in contact with Air 
Traffic Control while operating in the NAS. The FAA would also require 
a permittee to record communications affecting the safety of flight. 
Recording communication is necessary for mishap investigations. Some 
suborbital operators will use a central control room for 
communications, while others plan to rely solely on a pilot 
communicating with Air Traffic Control. In either case, the FAA 
proposes that the permit holder record these communications. The FAA 
would verify that the permit holder is in compliance with this 
requirement during inspections.

k. Flight Rules

    The FAA continues to find that the use of flight rules and 
procedures by a launch operator contribute significantly to the overall 
safety of the flight during all phases of flight. Therefore, the FAA 
would require an operator to implement flight rules associated with--
     Conducting operations within a pre-approved operating 
area;
     Conducting key flight-safety events over unpopulated or 
sparsely-populated areas;