Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships and Aircraft, 47017-47027 [2016-17083]
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Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations
■
2. Amend Appendix G, Section 3 by
removing and reserving paragraph
(b)(1).
telephone (202) 267–7538; email
Rene.Rey@faa.gov.
SUPPLEMENTARY INFORMATION:
Issued under authority provided by 49
U.S.C. 106(f), 40103, 40113, and 44701(a) in
Washington, DC, on July 12, 2016.
Michael Huerta,
Administrator.
Authority for This Rulemaking
The Commercial Space Launch Act of
1984, as amended and codified at 51
United States Code (U.S.C.) Subtitle V—
Commercial Space Transportation, Ch.
509, Commercial Space Launch
Activities, 51 U.S.C. 50901–50923 (the
Act), authorizes the Secretary of
Transportation and thus the FAA,
through delegations, to oversee, license,
and regulate commercial launch and
reentry, and the operation of launch and
reentry sites as carried out by U.S.
citizens or within the United States. 51
U.S.C. 50904, 50905. The Act 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. 51 U.S.C. 50905.
Section 50901(a)(7), in relevant part,
directs the FAA to regulate private
sector launches, reentries, and
associated services only to the extent
necessary to protect the public health
and safety and safety of property. The
FAA is also responsible for encouraging,
facilitating, and promoting commercial
space launches and reentries by the
private sector. 51 U.S.C. 50903.
[FR Doc. 2016–17155 Filed 7–19–16; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 417, 420, 431, and 435
[Docket No.: FAA–2014–0418; Amdt. Nos.
417–4, 420–7, 431–4 and 435–3]
RIN 2120–AK06
Changing the Collective Risk Limits for
Launches and Reentries and Clarifying
the Risk Limit Used To Establish
Hazard Areas for Ships and Aircraft
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
The FAA is amending its
regulations concerning the collective
risk limits for commercial launches and
reentries. These changes include:
Separating the risk limits for
commercial launches and reentries;
aggregating the risk posed by impacting
inert and explosive debris, toxic release,
and far field blast overpressure; limiting
the aggregate risk for these three hazards
to 1 × 10¥4; reducing the number of
significant digits used in launch and
reentry risk analysis; and various nonsubstantive clarifying revisions. These
changes update FAA regulations to
reflect the United States Government’s
greater experience with commercial
launch and reentry and to align more
closely the FAA’s risk standards with
those of other United States Federal
agencies, while continuing to protect
public safety.
DATES: Effective September 19, 2016.
ADDRESSES: For information on where to
obtain copies of rulemaking documents
and other information related to this
final rule, see ‘‘How To Obtain
Additional Information’’ in the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: For
technical questions concerning this
action, contact Rene Rey, AST–300,
Office of Commercial Space
Transportation, Federal Aviation
Administration, 800 Independence
Avenue SW., Washington, DC 20591;
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SUMMARY:
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I. Overview of Final Rule
The FAA is adopting this final rule to
revise certain regulations related to the
collective risk limits for commercial
launches and reentries in part 417
(Launch Safety), part 420 (License to
Operate a Launch Site), part 431
(Launch and Reentry of a Reusable
Launch Vehicle (RLV)), and part 435
(Reentry of a Reentry Vehicle Other
Than a Reusable Launch Vehicle (RLV))
of Title 14 of the Code of Federal
Regulations (14 CFR).
This final rule divides the risk
analysis for launch and reentry,
providing a separate risk budget for
each. For all launches, regardless of
vehicle type, this final rule requires a
single expected number of casualties
(Ec) be calculated by aggregating the risk
posed to the collective members of the
public from three hazards: Impacting
and inert explosive debris, toxic release,
and far field blast overpressure. This
final rule also revises the acceptable risk
threshold for launch from an Ec of 30 ×
10¥6 for each hazard to an Ec of 1 ×
10¥4 for all three hazards combined.
Furthermore, this final rule expresses
the revised Ec limit using the correct
number of significant digits to properly
represent the uncertainty in Ec
calculations. This final rule changes the
FAA’s collective risk limits for launch
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47017
and reentry to more closely match the
Ec standard currently used by the
United States (U.S.) Air Force and the
National Aeronautics and Space
Administration (NASA) for government
missions, and to account for the level of
uncertainty that exists in the Ec
calculations.
This final rule also makes two
revisions to § 417.107 to clarify the
launch and reentry regulations. The first
revision removes the phrase ‘‘including
each planned impact’’ from
§ 417.107(b)(1) to clarify that public risk
is assessed from lift-off through orbital
insertion for orbital launches and from
lift-off to final impact for suborbital
launches. The second revision modifies
§ 417.107(b)(3) and (b)(4) to make
transparent the criteria for establishing
hazard areas by replacing the references
to equivalent levels of safety for water
borne and aircraft hazard areas required
for launch from a federal launch range
with the actual levels of safety provided
by hazard areas for launches from a
federal range in 2006, the year the FAA
promulgated § 417.107. Under
§ 417.107(b)(3), a hazard area for water
borne vessels satisfies part 417 if the
probability of impact with debris
capable of causing a casualty on any
potential water borne vessel within the
hazard area does not exceed 0.00001 (1
× 10¥5). Under § 417.107(b)(4), a hazard
area for aircraft will satisfy part 417 if
the probability of impact with debris
capable of causing a casualty on any
potential aircraft within that hazard area
does not exceed 0.000001 (1 × 10¥6).
These clarifying edits do not change the
risk requirement for launch licensees or
launch license applicants.
Summary of the Costs and Benefits of
the Final Rule
The final rule will result in net
benefits for both the commercial space
transportation industry (industry) and
government by reducing the number of
waivers that must be prepared by the
industry and processed by the
government for launches with an
aggregate Ec between 90 × 10¥6 and 149
× 10¥6, and by averting unnecessary
mission delays and scrubs. The
resulting savings for both the industry
and the FAA from reducing the number
of waivers range from a low estimate of
approximately $8.3 million to a high
estimate of $16.7 million ($5.8 million
and $11.7 million present value at a 7%
discount rate, respectively).
II. Background
An operator conducts a launch using
an expendable launch vehicle (ELV) or
a reusable launch vehicle (RLV). An
ELV is a launch vehicle whose
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propulsive stages are flown only once.
14 CFR 401.5. An RLV is a launch
vehicle that is designed to return to
Earth substantially intact and, therefore,
may be launched more than one time or
that contains vehicle stages that may be
recovered by a launch operator for
future use in the operation of a
substantially similar launch vehicle. Id.
Reentry is conducted with RLVs or
other reentry vehicles. A reentry vehicle
is a vehicle designed to return from
Earth orbit or outer space to Earth
substantially intact, and includes a
reentering RLV. Id.
Parts 417, 420, 431, and 435
(collectively, the collective risk
regulations) limit the collective risk that
a commercial launch or reentry may
pose to the public. The FAA’s collective
risk regulations, as originally
promulgated, were based primarily on
Ec limits that the U.S. Air Force
imposed on launches from federal
launch ranges at the time the FAA began
establishing its own Ec limits.1 In
addition to imposing Ec limits on risk
posed by launches and reentries to
collective members of the public, these
regulations also impose separate limits
on the risk posed by these operations to
individual members of the public.
In July 2014, the FAA published in
the Federal Register a notice of
proposed rulemaking (2014 NPRM)
proposing various revisions to the
FAA’s launch and reentry regulations.2
This final rule adopts the proposal
outlined in the 2014 NPRM, with minor
modifications and clarifications in
response to comments from the public.
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A. Statement of the Problem
Prior to the 2014 NPRM,
developments in the industry and
among U.S. Government agencies led
the FAA to question its collective risk
regulations. In 2010, the U.S. Air Force,
after conducting over 5,000 launches
under a 30 × 10¥6 Ec limit, determined
that it could increase its Ec limit from
30 × 10¥6 per hazard to 100 × 10¥6 for
the aggregate public risk associated with
debris, toxicity, and far field blast
overpressure without harming public
safety. The U.S. Air Force’s new Ec
standards also apply a separate Ec limit
to reentry, limiting reentry Ec to 100 ×
10¥6 for the aggregate public risk
associated with all hazards, which
typically include debris, toxicity, and
1 See, e.g., Commercial Space Transportation
Licensing Regulations, Final Rule (Launch
Licensing Rule), 64 FR 19586, 19605 n.11 (Apr. 21,
1999).
2 Changing the Collective Risk Limits for
Launches and Reentries and Clarifying the Risk
Limit Used to Establish Hazard Areas for Ships and
Aircraft, 79 FR 42241 (July 21, 2014).
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far field blast overpressure. In addition,
in 2010 NASA also revised its risk
acceptability policy to limit the Ec from
launch and reentry missions to 100 ×
10¥6 each.
Because the FAA’s collective risk
regulations were based on the U.S. Air
Force’s former 30 × 10¥6 limit—a limit
that both the U.S. Air Force and NASA,
after considerable experience, have now
revised—the FAA questioned in the
2014 NPRM whether its collective risk
limits, revised by this final rule,
continued to represent appropriate
public risk criteria for commercial ELV
and RLV operations. In addition, the
FAA’s own experience led the agency to
question whether those Ec limits created
an obstacle to NASA’s implementation
of the National Space Policy (e.g., NASA
proposed commercial flights to the
International Space Station that would
not meet FAA’s current Ec limits).3
Finally, the FAA also sought to
address in the 2014 NPRM whether its
former collective risk regulations
sufficiently distinguished between
commercial launch and reentry risk.
Instead of regulating risk based on
whether the operation in question was
a launch or a reentry, the former
collective risk regulations focused on
the type of vehicle used in the
operation, namely whether the vehicle
was an ELV, RLV, or a reentry vehicle.
B. Summary of the 2014 NPRM
The 2014 NPRM proposed several
revisions to the FAA’s risk framework.
These proposals included: Aggregating
launch hazards and establishing an Ec
limit of 1 × 10¥4, thus reducing the
number of significant digits in a launch
or reentry risk analysis; separating the
risk limits for the launch and reentry of
a reentry vehicle; including toxic release
as a hazard in the risk analysis for
reentries; and clarifying the acceptable
risk threshold for impact with ships and
aircraft in hazard areas. For more
detailed information, interested parties
may consult the preamble of the 2014
NPRM.
C. General Overview of Comments
The comment period for the July 2014
NPRM closed on October 20, 2014. The
FAA received comments from nine
commenters, including ACTA Inc.
(ACTA), Blue Origin, LLC (Blue Origin),
Lockheed Martin Corporation (Lockheed
Martin), Orbital Sciences Corporation
(Orbital Sciences), Sierra Nevada Corp.
(Sierra Nevada), Space Exploration
Technologies Corp. (SpaceX), XCOR
3 See National Space Policy of the United States
of America (June 28, 2010), available at https://
www.whitehouse.gov/sites/default/files/national_
space_policy_6-28-10.pdf.
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Aerospace (XCOR), and two individual
commenters. Most of the commenters
supported the proposed changes, and
some suggested additional changes that
are discussed more fully below. Several
commenters fully supported the
proposed changes, and one commenter
opposed the proposed changes. The
comments focused on the following
general areas of the proposal:
• Individual risk limits
• Separation of launch and reentry
• Significant figures
• Ship and aircraft hazard areas
• Including toxic release in the reentry
risk analysis
III. Discussion of Public Comments and
Final Rule
A. Individual Risk
As discussed in the 2014 NPRM, this
final rule does not substantively revise
the FAA’s limitation on risk posed to
individuals found in §§ 417.107, 431.35,
and 435.35.4 The individual risk limits
in § 417.107(b)(2) prohibit launch risk to
an individual from exceeding 1 × 10¥6
for each hazard (debris, toxic release,
and far field blast overpressure) for
launch of an ELV. For the launch of a
RLV or other reentry vehicle,
§§ 431.35(b)(1)(ii) and 435.35 continue
to prohibit the risk to an individual
from exceeding 1 × 10¥6 per mission.
The FAA proposed no change to this
risk limit, so any change now would be
outside the scope of the proposal.
Nonetheless, the comments raise issues
of interest and are addressed below.
XCOR agreed that no change is
necessary because it is easier for launch
operators to mitigate risk to a particular
individual than the collective public,
and because the FAA has never waived
individual risk for launches in the past.
On the other hand, Orbital Sciences
recommended that the FAA ‘‘[e]xamine
historical data for all U.S. launches to
determine the highest level of risk
realized by any individual member of
the public and propose a more realistic
. . . risk [figure] based on this
successful precedent.’’ Orbital Sciences
also recommended that the FAA adopt
‘‘identical risk limits for individual
members of the public’’ for U.S.
Government and commercial launches.
The FAA disagrees with Orbital
Sciences’ recommendation to revise the
individual risk threshold. Unlike the
FAA’s collective risk limitation, the
FAA is aware of only a small number of
historical U.S. government launches for
which the predicted individual risk for
any one member of the public exceeded
4 However, it should be noted that the FAA made
a non-substantive change to 417.107(b)(2) to
improve consistency and clarity.
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1 × 10¥6. From a statistical perspective,
this casualty-free launch record is the
expected outcome because 1 × 10¥6
corresponds to a one-in-a-million
chance of a particular person being a
casualty and there have been no more
than a few thousand launches from the
United States. The FAA therefore finds
insufficient evidence at this time to
justify relaxing the current individual
risk limits, which are an integral part of
an interdependent set of safety
requirements that have produced a
flawless public safety record for U.S.
launches and reentries. Furthermore,
the FAA notes that limiting risk to
individual members of the public at the
1 × 10¥6 level is consistent with the
consensus standard produced by U.S.
range safety organizations as adopted by
NASA and the U.S. Air Force.
ACTA stated that maintaining the
current individual risk thresholds
perpetuates inconsistent individual risk
standards for ELVs, RLVs, and reentry
vehicles. ACTA observed that
§ 417.107(b)(1)(ii) limits individual risk
to 1 × 10¥6 for each hazard for ELVs.
ACTA stated that this was inconsistent
with the risk threshold for RLVs and
reentry vehicles in § 431.35(b)(2)(ii),
which limits total risk to an individual
to 1 × 10¥6 over the course of the entire
mission, without any reference to
specific hazards. As a result, ACTA
argued, ELV missions would have a
different individual risk criterion than
missions involving an RLV or other
reentry vehicle.
ACTA’s recommendation to
harmonize all individual risk limits is
outside the scope of the current
rulemaking. Also, the FAA has
insufficient data to justify a change to
the individual risk criteria for either
launch or reentry, and thus no change
was proposed. Finally, the current
regulatory framework governing
individual risk for launch and reentry
risk has successfully protected the
public since 2000.
B. Separating Ec for Launch and Reentry
The FAA proposed to separate the Ec
limits for the launch and reentry of all
reentry vehicles, instead of applying a
single risk limit to both phases of a
mission.5
Blue Origin, Lockheed Martin, Orbital
Sciences, and SpaceX fully supported
the proposal to separate launch and
reentry risk. ACTA supported the
proposal to separately assess launch and
reentry risk if reentry occurs after a
health check, but noted that ‘‘separation
of risk budgets for launch and reentry
5 The separation of E limits for launch and
c
reentry affects §§ 431.35(b) and 435.35.
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ignores the risk contribution from a
failure to initiate a planned reentry.’’ In
particular, ACTA noted that ‘‘[t]here
does not appear to be any consideration
for consequences if the health check
prior to reentry fails. . . . [The
vehicle’s] orbit will eventually degrade
and re-enter . . . [and the] risk of this
potentially uncontrolled re-entry (if the
health of the vehicle can never be
restored) appears to be neglected.’’
ACTA is correct that the FAA does
not regulate the risk associated with
reentry vehicles or parts of reentry
vehicles that do not initiate or attempt
to initiate a purposeful reentry. As the
FAA has explained, the Act limits the
FAA’s licensing of reentry to scenarios
involving purposeful reentry; 6
therefore, the FAA is prohibited from
considering the ‘‘possibility of a random
uncontrolled reentry that occurs as a
result of a reentry vehicle ceasing to
function upon arrival in orbit.’’ 7
Although the 2014 NPRM did not
propose to change the requirement that
suborbital launches and reentries be
subject to a single launch Ec, the FAA
invited comment on the issue. Sierra
Nevada commented that suborbital
flights also should have separate risk
limits for launch and reentry because
each phase of flight required
independent operational decisions.
XCOR, on the other hand, commented
that suborbital vehicles should continue
to have a single risk limit because, for
a suborbital launch, ‘‘reentry is a
physical inevitab[ility]’’; there is ‘‘no
intervening event between launch and
reentry’’; and that ‘‘reentry is closely
proximate in time—four minutes, for
most concepts to launch.’’
The FAA agrees with XCOR that a
suborbital mission should continue to
be analyzed using a single risk budget
for the entire mission, from launch
through final impact, because there is
no intervening event between launch
and reentry and because reentry is a
physical inevitability. Moreover,
separating launch and reentry risk limits
for suborbital flights is beyond the scope
of this final rule because it would
require revising the definitions of
‘‘reentry’’ and ‘‘launch’’ found in
§ 401.5, changes the NPRM did not
propose.
The FAA will require separate
analysis of the risks associated with
6 Waiver of Acceptable Mission Risk Restriction
for Reentry and a Reentry Vehicle, 75 FR 75619,
75620 (Dec. 6, 2010).
7 The Waiver explained that ‘‘[b]ecause 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’’ limitations on
the FAA’s authority.
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launch and reentry because the two are
separate events. A launch may not
always be successful, and a single risk
limit that encompasses both launch and
reentry makes reentry risk calculations
unnecessarily dependent on the
probability of failure associated with
launch. The FAA leaves unchanged,
however, the requirement that
suborbital launches and reentries must
comply with a single launch Ec limit
that encompasses the entire operation
from launch through final impact.
C. Revising the Acceptable Risk
Standard
The FAA proposed to revise the
acceptable risk limit for launch to 1 ×
10¥4, encompassing all three hazards—
debris, toxic release, and far field blast
overpressure. This would amend the
risk framework’s three components by
aggregating the analysis of debris,
toxics, and far field blast overpressure;
establishing a new, unified risk standard
for the three primary hazards combined;
and revising the risk standard to be
expressed using one significant figure.
The commenters addressed each of
these issues separately.
1. Aggregating Ec for Debris, Toxics, and
Far Field Blast Overpressure
ACTA, Orbital Sciences, and SpaceX
supported the proposal to aggregate risk
calculations. The FAA received no
negative comments on this component
of the proposal. Therefore, this final rule
replaces the prior requirement to satisfy
three separate Ec criteria (one each for
debris, toxics, and far field blast
overpressure) with a single Ec criterion
accounting for all three primary
hazards.
2. Revising the Number of Significant
Figures
Numerous commenters, including
Blue Origin, Lockheed Martin, Orbital
Sciences, and SpaceX, supported the
FAA’s proposal to express the risk
threshold using one significant figure.
Lockheed Martin stated that the
proposal ‘‘would improve efficiency and
maintain a level of safety for
commercial launches that is
commensurate with the current high
level of safety associated with civil and
military launches.’’
ACTA and an individual commenter
advocated against changing the number
of significant figures. An individual
commenter recommended that one
significant figure would be more
appropriate at the level of 1 × 10¥5.
ACTA agreed with the proposal to
increase the risk limitations insofar as
‘‘it is reasonable to apply a higher
acceptability limit (around 100 ×
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10¥6),’’ but also stated the FAA’s
proposal to both raise the limit and
reduce the number of significant figures
resulted in an effective increase of ‘‘the
acceptable risk limit to 50% above
current Air Force and NASA practice.’’
Referring to the effects of revising the
number of significant figures, ACTA
stated that ‘‘the difference between 100
× 10¥6 and 149 × 10¥6 is real and
significant.’’ ACTA also stated that,
because of this ‘‘effective’’ 50%
increase, the FAA’s proposal would not
maintain safety levels for commercial
space transportation commensurate
with the current requirements for civil
and military reentries. Finally, ACTA
also disagreed with the FAA’s rationale
for increasing the acceptable risk limit.
In particular, ACTA stated that it is
inappropriate to exceed the Range
Commanders Council (RCC) 321
consensus standard; the success of a
relatively small number of missions
operated under waivers is statistically
irrelevant; and the continued use of
waivers is reasonable in a developing
industry.
The FAA disagrees that the difference
between 100 × 10¥6 and 149 × 10¥6 is
real and significant because the
uncertainty associated with many of the
variables that go into determining Ec are
too large to justify using more than one
significant digit. The FAA and others,
including ACTA, have performed
extensive uncertainty analyses for both
launch area and downrange overflight.
These analyses accounted for aleatory—
irreducible—and epistemic—
modeling—sources of uncertainty,
including the inherent variability in the
impact distribution due to wind and lift
effects for irregular debris following
failure; probability of failure; casualty
area for people in shelters that are
impacted by debris; size of the debris
impact probability distribution; yield
from exploding propellant and
propellant tanks; probability of injury
from a blast wave for people in
buildings or unsheltered; and
population density. Uncertainty also
exists in the Ec estimate for overflight
because of the uncertainty in the time of
launch,cargo debris, and different
methods to characterize the normal
trajectory dispersions based on input
data provided by the launch operator.
A standard public risk analysis for
launch or reentry produces a single Ec
value, but these state-of-the-art analyses
demonstrate that the modeling
uncertainties are too large to justify
calculating Ec to more than one
significant figure.8 In fact, the
8 In fact, an uncertainty analysis produces a set
of point estimates, each of which is an equally valid
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uncertainty in a vehicle’s probability of
failure alone is generally large enough to
render meaningless any calculated
differences involving more than one
significant digit, such as a calculated
difference of 100 × 10¥6 compared to
149 × 10¥6 in Ec estimates for a
commercial launch.9 Specifically,
during SpaceX’s third Falcon 9 mission
(F9–003), two probability of failure
analysis approaches applied by the two
major federal ranges for commercial
launches, which the FAA deemed
equally valid based on the requirements
in § 417.224, produced mean probability
of failure estimates during Eurasian
over-flight that varied by approximately
40 percent. Also, the uncertainty in the
Ec estimate scales linearly with the
statistical uncertainty associated with
any probability of failure analysis
method, even when the assumptions of
the model are absolutely true. For
example, applying the binomial
approach in part 417, appendix A,
§ 417.25(b)(5)(iii), to a new vehicle with
a record of no failures in the first two
flights produces a reference probability
of failure estimate of 0.28. Even if the
assumption of Bernoulli trials 10
inherent in the binomial approach is
absolutely true, which is doubtful given
the evolutionary nature of expendable
launch vehicles, particularly during the
first several flights, there is about a 20
result, to quantify the uncertainty in the Ec estimate.
ACTA itself developed a tool that computes the
uncertainty in the point estimate of Ec by using
multiple input data sets within the range of
feasibility given the uncertainty associated with the
input data, together with a multiple sets of factors
applied to each sub-model to account for the
estimated biases and uncertainties in the applicable
sub-models.
9 Of course, the probability of failure uncertainty
is very large for relatively new vehicles, which are
most likely to have risk estimates near the 1 × 10¥4
Ec limit. However, even vehicles with extensive
flight history, such as the Delta II, have probability
of failure estimates that vary by a factor of two or
more based on the analysis approaches applied by
the two major federal ranges where commercial
launches most often occur. For example, the Delta
II demonstrated nine failures in 227 launches in
advance of the GRAIL mission. Valid probability of
failure analysis methods produced mean estimates
of probability of failure for the GRAIL launch
between less than 2% to more than 4%, depending
on whether and how reliability growth was
accounted for.
10 All expendable launch vehicle failure
probability analysis methods used by Federal
ranges today assume that launches may be treated
as Bernoulli trials: That the vehicle has a constant
‘‘true probability’’ of failure for each and every
launch, and that the outcome of each launch is
statistically independent of all others. A toss of an
evenly weighted coin is a classic example of a
Bernoulli trial. Of course, launches are not exactly
Bernoulli trials because no two launches are
precisely the same. For example, the vehicle may
be modified or improved as needed during a
sequence of launches, particularly if it has failed on
previous launches, and there are natural variations
due to environmental conditions during the vehicle
manufacturing, processing, and launch.
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percent chance that the true probability
of failure is at least twice the reference
probability of failure estimate. It is
impossible to know the true probability
of failure for any launch vehicle flight.
The FAA believes that the uncertainty
in the probability of failure alone always
renders meaningless any more than one
significant digit in any commercial
launch or re-entry Ec estimate.
ACTA provided three alternatives to
the FAA’s July 2014 proposal. These
alternatives included (1) using ‘‘the
approach specified in RCC 321–10’’ in
which increasing degrees of analysis
and mitigation are required as the risk
increases above 30 × 10¥6 and again at
100 × 10¥6; (2) ‘‘[e]xpress[ing] the limit
that log10(EC) is less than ¥4.0 (to two
significant figures’’; and (3)
‘‘[a]pply[ing] a limit of 9 × 10¥5 rather
than 1 × 10¥4 which results in an
effective limit of 95 × 10¥6.’’
The FAA appreciates the potential
value in using the RCC 321–10
approach, in which increasing degrees
of analysis and mitigation are required
as the risk increases. Such a dramatic
change, however, is beyond the scope of
this rulemaking. The FAA disagrees
with ACTA’s recommendations to
‘‘[e]xpress the limit that log10(EC) is less
than ¥4.0 (to two significant figures’’ or
‘‘[a]pply[ing] a limit of 9 × 10¥5 rather
than 1 × 10¥4 which results in an
effective limit of 95 × 10¥6’’ because
either of those approaches would still
imply more significant digits in the Ec
estimate than justified based on the Ec
uncertainty analyses summarized above.
3. Establishing an Acceptable Risk Limit
of 1 × 10¥4
Under the 2014 NPRM,
§§ 417.107(b)(1), 431.35(b)(1)(i), and
435.35(b) would establish an acceptable
collective risk limit of 1 × 10¥4. Two
commenters, Lockheed Martin and
SpaceX, supported the proposal without
additional significant comment. SpaceX
noted that the proposal would align the
FAA’s risk limit with the standards set
by other organizations within the U.S.
Government.
Orbital Sciences supported the
proposal but also recommended that the
FAA ‘‘[e]xamine historical data for all
U.S. launches and determine the highest
level of collective risk realized by the
public [to] propose a more realistic . . .
collective risk [number] based on this
successful precedent.’’ Similarly, Blue
Origin recommended that the collective
risk number be revised higher than
proposed, to 1 × 10¥3. Blue Origin
noted that Federal ranges have, in the
past, waived risks associated with noncommercial reentry to as high as 1 ×
10¥3, and stated, ‘‘[t]he commercial
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spaceflight industry should be held to
the standard that the nation’s civil and
military programs are held to in
practice.’’ 11 Blue Origin suggested that
reducing the need for waivers would
increase transparency and ‘‘more closely
reflect FAA’s regulatory practice, rather
than relying on a waiver process such as
practiced by NASA and’’ the U.S. Air
Force. Blue Origin further stated that, if
the FAA adopts ‘‘a risk level that differs
from [the FAA’s] actual practice, the
commercial spaceflight industry will be
left not knowing what the real, actual
risk level will be in practice,’’
suggesting that reducing the agency’s
reliance on waivers would provide an
important measure of stability and
predictability to the commercial space
industry.
The FAA disagrees with Orbital
Sciences’ and Blue Origin’s
recommendations to increase the Ec
limit beyond 1 × 10¥4. The United
States has achieved a flawless public
safety record for orbital launch and reentry missions in part because of a
comprehensive and interdependent set
of public safety requirements developed
and implemented by numerous,
cooperating entities within the U.S.
government. Three U.S. government
entities, the U.S. Air Force, NASA, and
the FAA, have oversight of the safety of
launches. Both the U.S. Air Force and
NASA, working alone and collaborating
through organizations such as the RCC
and the Common Standards Working
Group, have examined the available
data and determined that 100 × 10¥6,
also expressed as 1 × 10¥4, is an
appropriate standard for acceptable
risk.12 There are an insufficient number
of casualty-free launches and reentries
with Ec greater than 1 × 10¥4 to justify
departing from the standard adopted by
the U.S. Air Force and NASA. In the few
cases where waivers were granted by the
FAA, prior to and including 2014, the
respective Ec was always less than the
risk levels previously approved for
government launches. Hence, any
precedent for granting waivers for prior
non-commercial reentries is not
sufficient justification for implementing
a more lenient risk limit, especially in
light of the increased scrutiny given to
each waiver applicant.
Moreover, a fundamental tenent of
risk management, both as applied to the
regulation and general safety
management of various industries, is to
set acceptability criteria for collective
11 Emphasis
in original.
Range Commanders Council Risk
Committee of the Range Safety Group, Common
Risk Criteria for National Test Ranges, RCC 321–10,
White Sands Missile Range, New Mexico, 2010.
12 See
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risk that are below the level that may be
acceptable in unusual circumstances or
on a short term basis. For aviation risk
management, the FAA has identified
risk-informed Continued Airworthiness
Assessment Methodologies (CAAM) that
include short term acceptable risks that
are orders of magnitude greater than
long term acceptable risk levels.13 Thus,
AC 39–8 is another example of the FAA
adopting a risk management approach
where basic acceptability criteria are
more stringent than may be acceptable
in unusual circumstances or on a short
term basis. Note that the FAA’s use of
quantitative risk analysis results is
consistent with the risk-informed
approach to regulatory decision-making
adopted by the Nuclear Regulatory
Commission (NRC). In 1999, the NRC
wrote that ‘‘a ‘risk-informed’ approach
to regulatory decision-making
represents a philosophy whereby risk
insights are considered together with
other factors to establish requirements
that better focus licensee and regulatory
attention on design and operational
issues commensurate with their
importance to public health and
safety.’’ 14
In light of these considerations and all
currently available data, the FAA finds
that a collective Ec limit of 1 × 10¥4
reflects an appropriate consensus safety
risk standard for launch and re-entry.
Consistent with Executive Orders 13563
and 13610, the FAA plans to
periodically review and revise this
public risk standard, if warranted, based
upon factors such as the quantity of
launch and reentry activities,
demonstrated reliability and safety
record and benefits provided,
technological capabilities, and maturity
of the industry.
ACTA and an individual commenter
cautioned against justifying any increase
to the acceptable risk standards by
reference to either a relatively small
number of successful launches or the
uncertainty of launch risk calculations.
The individual commenter
recommended that any increase to the
acceptable risk limits be premised on a
determination that higher numbers still
adequately ensure public safety.
The FAA disagrees with ACTA’s and
the individual commenter’s premise
concerning the basis of this final rule.
13 Federal Aviation Administration, Advisory
Circular No. 39–8, Continued Airworthiness
Assessments of Powerplants and Auxiliary Power
Unit Installations of Transport Category Planes,
Washington, DC, September 2003.
14 U.S. Nuclear Regulatory Commission,
Commission Issuance of White Paper on Riskinformed and Performance-based Regulation,
Yellow Announcement # 019, Washington, DC,
dated March 11, 1999.
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Contrary to their assertion, the FAA is
not relying on the historical success of
a relatively small number of past
launches as a justification for increasing
the acceptable risk standard. Rather, the
FAA, by statute, is authorized to
regulate ‘‘only the extent necessary’’ to
protect public health and safety. 51
U.S.C. 50901(a)(7). The U.S. Air Force
and NASA, two federal agencies with
significant expertise in this area, have
both examined the currently available
data and concluded that it does not
justify an aggregated Ec limit lower than
100 × 10¥6. Furthermore, there are
published materials that explain the
rationale for the collective risk limit
adopted both by the U.S. Air Force and
NASA.15 16 17 The currently available
data does not justify a regulatory
restriction on Ec for commercial
licensees that is more stringent than the
standards adopted both by the U.S. Air
Force and NASA.
D. Clarifying Hazard Areas for Ships
and Aircraft
Prior to this final rule, § 417.107(b)(3)
and (4) required the launch operator of
an ELV to implement and establish ship
and aircraft hazard areas providing an
equivalent level of safety to that
provided by the ship and aircraft hazard
areas implemented for launch from a
Federal launch range. 71 FR 50508. The
FAA proposed to amend § 417.107(b)(3)
and (4) to clarify the requirements for
hazard areas for ships and aircraft,
respectively, by removing references to
an ‘‘equivalent level of safety to that
provided by [ship or aircraft] hazard
areas implemented for launch from a
Federal range’’ and replacing them with
a numeric limit on the probability of
impact with debris capable of causing a
casualty.
Orbital Sciences recommended that
no change be made to the hazard area
regulations. Orbital Sciences stated that
the proposal to implement a specific
risk standard, even if it is quantitatively
the same as the Federal launch ranges’
standard, creates the possibility that the
Federal launch ranges will change their
standard and the FAA’s regulation will
become obsolete. The FAA disagrees
with Orbital Sciences’ recommendation.
Regardless of whether the Federal
15 See Range Commanders Council Risk
Committee of the Range Safety Group, Common
Risk Criteria for National Test Ranges, RCC 321–10,
White Sands Missile Range, New Mexico, 2010.
16 Wilde P., Public Risk Criteria and Rationale for
Commercial Launch and Reentry, 5th IAASS
Symposium, Versailles, France, October 2011.
17 Wilde, P. Public Risk Tolerability Criteria for
Space Launch and Reentry, Presented at the 51st
Scientific and Technical Subcommittee of the
United Nations Committee on the Peaceful Uses of
Outer Space, Vienna, Austria, 18 Feb. 2014.
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launch ranges change their risk criteria
for ships and aircraft, the
Administrative Procedure Act, with
limited exceptions, prohibits the FAA
from changing its regulatory
requirements without notice and
comment. 5 U.S.C. 553. Therefore, even
if the FAA maintained these provisions
using a purportedly outdated standard,
a change to the Federal launch range
requirements would not automatically
flow through to FAA regulations, and
licensed launch operators would have to
abide by the Federal launch range
standard in effect when the FAA first
promulgated the regulation.
Accordingly, if the Federal launch
ranges change their standard, the FAA
will have to initiate its own rulemaking
in order to harmonize its water-borne
vessel and aircraft hazard areas limits
with the Federal launch ranges’. To
prevent this confusion, the FAA is
revising § 417.107(b)(3) and (4) to
identify the numeric requirements.
An individual commenter questioned
the proposed clarifications regarding the
ship and aircraft hazard areas.
Specifically, the individual commenter
pointed out that the proposal, which is
based on the probability of impact with
debris capable of causing a casualty,
could be either excessively conservative
or non-conservative depending on the
details of the analysis, such as the
threshold characteristics of the debris
and the size of the area considered
vulnerable to such debris impact. ACTA
provided similar comments, stating the
regulations (1) do ‘‘not define the area
for computing impact’’ with a vessel or
aircraft, and (2) do not clarify that
operators must account for ‘‘the nearfield explosive effects of propellants
impacting in the vicinity of [a] ship.’’
The individual commenter’s
recommendation to substantively
amend the hazard area risk standards is
outside the scope of this rulemaking. As
described in the 2014 NPRM, this final
rule does not substantively change the
hazard area risk standards. 79 FR 42241,
42249–50. The hazard area revisions
only clarify the FAA’s standards by
using a specific number, rather than an
unquantified reference to Federal
launch range standards. The FAA
therefore rejects the commenter’s
recommendations to make substantive
changes to the rule.
ACTA’s comments also included
numerous additional observations
related to the hazard area regulations.
ACTA stated that the regulations do not
‘‘specify how (or even if) hazard areas
are to be used to implement mitigation’’
to protect specific individuals or the
general public. This observation,
however, ignores other sections of the
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regulations that do address how hazard
areas are to be used to implement
mitigation techniques, such as issuing
public warnings and performing
surveillance. To meet the public risk
criteria of § 417.111(b), § 417.223
requires ‘‘a flight hazard area analysis
that identifies any regions of land, sea,
or air that must be surveyed, publicized,
controlled, or evacuated in order to
control the risk to the public from debris
impact hazards.’’ Furthermore,
§ 417.111(j) requires a launch operator
to ‘‘implement a plan that defines the
process for ensuring that any
unauthorized persons, ships, trains,
aircraft or other vehicles are not within
any hazard areas identified by the flight
safety analysis or the ground safety
analysis,’’ and explicitly includes
hazard areas identified under §§ 417.107
and 417.223.
ACTA also criticized the proposal for
failing to justify ‘‘why the acceptable
risk limit to the general public on ships
is higher than for people on land.’’ The
premise of this comment is not correct.
Specifically, § 417.107(b)(2) provides
that a launch operator may initiate flight
only if the risk to any individual
member of the public does not exceed
a 1 × 10¥6 probability of casualty,
regardless of the location of that
individual member of the public. Thus,
the FAA’s risk criteria provide equal
protection to each individual member of
the public, on ships or on land.
Moreover, to the extent ACTA is
criticizing the water-borne vessel hazard
areas requirement, the FAA is not
changing the water-borne vessel hazard
area requirement; it is merely clarifying
the requirement by removing a reference
to where the requirement can be found
and replacing it with the actual
requirement.
ACTA also was concerned that the
criteria for ship and aircraft do not
explicitly exclude ‘‘mission-support
vessels and aircraft,’’ creating an
inconsistency with the remainder of the
regulation. Although ACTA is correct
that the criteria do not apply to vessels
and aircraft that support the launch, the
FAA’s launch and reentry regulations
address only public safety, which
§ 401.5 defines as ‘‘for a particular
licensed launch, the safety of people
and property that are not involved in
supporting the launch . . .’’ It,
therefore, is unnecessary to explicitly
exclude ‘‘mission-support vessels and
aircraft’’ from the public safety criteria
for launch.
Finally, ACTA recommended that
§ 417.107(b)(3) and (4) state that ‘‘a
launch operator must make reasonable
effort to ensure that the probability of
casualty to members of the public on
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water borne vessels or in aircraft does
not exceed the limit specified in
[§ 417.107(b)(2)].’’ ACTA stated that this
revision would establish a ‘‘specific risk
value’’ while at the same time giving
operators flexibility as to ‘‘the method of
protection’’ or risk mitigation. The
regulations already allow a launch
operator to employ different methods of
mitigating risk so the FAA will not
adopt ACTA’s proposal.
E. Including Toxic Release in the
Reentry Risk Analysis
The FAA proposed to include the
risks associated with toxic release in the
Ec limitations for the reentry of an RLV
or other reentry vehicle. Blue Origin
opposed the proposal to include toxic
release in the reentry risk calculation.
Blue Origin, quoting from the regulatory
evaluation in the 2014 NPRM, stated
that ‘‘toxic release risks for reentry
vehicles are ‘expected to remain a minor
factor in Ec calculations,’ because most
of the propellant will have been used
during the mission . . .’’ The FAA is
revising its position, and disagrees with
Blue Origin’s assertion, because the
FAA is aware of plans that involve the
return to land with a significant
hypergolic, highly toxic, propellant load
carried until touchdown. The FAA
therefore continues to include toxic
release in the reentry risk analysis at
this time.
F. Miscellaneous
Sierra Nevada recommended that the
FAA define orbital insertion to help
‘‘reduce misinterpretation of the
regulations’’ because ‘‘[s]etting a
specific boundary would allow
commercial space companies to clearly
understand the boundaries for expected
casualty limits.’’
The FAA agrees with Sierra Nevada’s
comments that § 417.107(b)(1) can be
amended to prevent potential
misinterpretation.18 The FAA takes this
opportunity to clarify that risk
associated with planned impacts after
orbital insertion should not be included
in an Ec analysis governed by § 417.107.
Accordingly, to minimize confusion, the
FAA is removing the phrase ‘‘including
each planned impact’’ from
§ 417.107(b)(1) to state only that the
operator account for risk through orbital
insertion. The risk assessment
conducted under § 417.107(b)(1) must
18 The FAA notes that its 2014 waiver for the
Orion Exploration Test Flight 1, which authorized
an Ec of up to 218 × 10¥6, improperly accounted
for public risks outside the scope of § 417.107(b)(1)
by considering public risk associated with planned
impacts after orbital insertion in the Ec calculation.
Notice of Waiver, Mar. 10, 2014 (79 FR 13375);
Notice of Amended Waiver, Dec. 5, 2014, (79 FR
72240).
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only include impacts through—meaning
up to and including—the moment of
orbital insertion. More specifically, Ec
encompasses risks associated with
planned events occurring from launch
through the moment of orbital insertion,
but not the risks associated with onorbit activities. For example, the
§ 417.107 risk analysis must include the
planned impact of a first stage jettisoned
prior to orbital insertion regardless of
whether the actual impact of the first
stage occurs before or after orbital
insertion.19 This is true whether the first
stage makes a controlled or uncontrolled
impact. In contrast, the § 417.107 risk
analysis does not require accounting for
the planned impact of an upper stage
jettisoned after the vehicle has achieved
orbital insertion.
An individual commenter observed
that the 2014 NPRM proposed to revise
the Ec requirements in parts 417, 431,
and 435, but neglected to revise the
corresponding Ec requirements in part
420, License to Operate a Launch Site.
This was an oversight. This final rule
revises §§ 420.19(a)(1); 420.23(a)(2),
(b)(3), and (c)(1)(ii); 420.25(b);
431.43(d)(2); paragraph (d) of Appendix
C to part 420; and paragraphs (a)(5),
(e)(2), and (e)(3) of Appendix D to part
420 to account for the Ec revisions made
throughout chapter III of title 14 of the
Code of Federal Regulations.
Previously, § 417.107(b)(2) referenced
Ec when describing the risk limit to any
individual member of the public. This
reference may cause confusion because
Ec is a measure of collective risk to
public safety, not individual risk. To
prevent any potential confusion, this
final rule makes a non-substantive
change to § 417.107(b)(2) to remove the
reference to Ec.
The FAA is streamlining the
terminology in the collective risk
requirements. Specifically, we are
removing the colloquial term ‘‘average’’
from ‘‘expected average,’’ which is
redundant and unnecessary. In statistics
there are three measures of central
tendency or ‘‘averages’’: The median,
mode, and mean. The expected value is
synonymous with the mean value
specifically, thus the term ‘‘expected’’ is
technically precise and sufficient.
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G. Differences Between the 2014 NPRM
and the Final Rule
As described above, there are two
differences between the FAA’s proposal
in the 2014 NPRM and this final rule as
adopted. These changes include: (1)
19 For example, the return to Earth and successful
landing of the first stage of SpaceX’s Falcon 9
launch vehicle was considered part of launch and
was accounted for in the calculation of launch risk.
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removing the phrase ‘‘including each
planned impact’’ from § 417.107(b)(1)
and (2) revising part 420 to account for
revisions to the Ec standard in parts 417,
431, and 435.
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866 and
Executive Order 13563 direct that each
Federal agency shall propose or adopt a
regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980 (Pub. L. 96–354) requires
agencies to analyze the economic
impact of regulatory changes on small
entities. Third, the Trade Agreements
Act (Pub. L. 96–39) prohibits agencies
from setting standards that create
unnecessary obstacles to the foreign
commerce of the United States. In
developing U.S. standards, the Trade
Act requires agencies to consider
international standards and, where
appropriate, that they be the basis of
U.S. standards. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4) requires agencies to prepare a
written assessment of the costs, benefits,
and other effects of final rules that
include a Federal mandate likely to
result in the expenditure by State, local,
or tribal governments, in the aggregate,
or by the private sector, of $100 million
or more annually (adjusted for inflation
with base year of 1995). This portion of
the preamble summarizes the FAA’s
analysis of the economic impacts of this
final rule.
In conducting these analyses, the FAA
has determined that this final rule: (1)
Has net benefits that justify the costs; (2)
is not an economically ‘‘significant
regulatory action’’ as defined in section
3(f) of Executive Order 12866; (3) is not
‘‘significant’’ as defined in DOT’s
Regulatory Policies and Procedures; (4)
will not have a significant economic
impact on a substantial number of small
entities; (5) will not create unnecessary
obstacles to the foreign commerce of the
United States; and (6) will not impose
an unfunded mandate on state, local, or
tribal governments, or other private
sectors by exceeding the threshold
identified above.
Department of Transportation Order
DOT 2100.5 prescribes policies and
procedures for simplification, analysis,
and review of regulations. If the
expected cost impact is so minimal that
a final rule does not warrant a full
evaluation, this order permits that a
statement to that effect and the basis for
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it to be included in the preamble if a full
regulatory evaluation of the cost and
benefits is not prepared. Such a
determination has been made for this
final rule. Based on the facts and
methodology explained for the NPRM,
the FAA provided cost-savings
estimates for the proposed rule and
requested comments. The FAA did not
receive any comments on the estimates
and thus the FAA follows the same
approach herein. These analyses are
summarized below.
Parties Potentially Affected by This
Rulemaking
• Satellite owners
• License applicants for launches and
reentries
• Commercial space transportation
suppliers
• The Federal Aviation Administration
and the general public
Principal Assumptions and Sources of
Information
• Benefit-Cost Analysis for the
collective risk limits during launches
and reentries (GRA study 2013 20 by
GRA, Incorporated)
• FAA Office of Commercial Space
Transportation forecast of suborbital
launches using subject experts’
judgments
• All monetary values are expressed in
2014 dollars
• Projected impacts for a 10-year period
from 2016 to 2025
Cost-Benefit Analysis
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
parts 417, 431, and 435 by changing the
collective risk limits for launches and
reentries and clarifying the risk limit
used to establish hazard areas for ships
and aircraft. The NPRM was published
in the Federal Register on July 21, 2014
(79 FR 42241).
Prior to this final rule, the FAA
prohibited the expected casualty (Ec) for
each physically distinct source of risk
(impacting inert and explosive debris,
toxic release and far field blast
overpressure) from exceeding 30 × 10¥6
or an expected average number of
0.00003 casualties per launch. The
aggregate Ec equals the sum of these
risks, i.e., (30 × 10¥6) + (30 × 10¥6) +
(30 × 10¥6), for a total of 90 × 10¥6.
However, launches were not subject
only to this single aggregate Ec limit. If
there was a reentry using a reentry
vehicle, an additional regulatory
provision became applicable that
prohibited the combined Ec of the
launch and reentry from exceeding 30 ×
20 GRA
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10¥6 for vehicle or vehicle debris
impact hazards.21
Under this final rule, the FAA
separates its expected casualties (Ec) for
launches and reentries. The final rule
adopts an aggregate Ec requirement for
a launch not to exceed 1 × 10¥4 posed
by the following hazards: (1) Impacting
inert and explosive debris, (2) toxic
release, and (3) far field blast
overpressure. The FAA also finalizes a
separate aggregate Ec requirement for a
reentry not to exceed 1 × 10¥4 posed by
the hazards of debris and toxic release.
An Ec value of 1 ×x 10¥4
mathematically equals 100 × 10¥6,
which is the Ec value currently used on
federal ranges for civil and military
launch and reentry missions. However,
because the aggregate Ec limit uses only
one significant digit in the format of 1
× 10¥4, this final rule, in practice,
allows a commercial launch or reentry
with an aggregate Ec limit up to 149 ×
10¥6 to proceed without requiring the
applicant to seek an FAA waiver.
Based on analysis of the historical
data, the FAA found the criteria are
supported by the commercial mission
experiences and post-mission safety
data available since 1989. The FAA’s
launch data indicate during this time
there were 45 suborbital launches and
193 orbital launches, for a total of 238
launches.22 At least four of these
launches used an Ec that was allowed to
go above the existing 30 × 10¥6 Ec
limits. None of those four launches
resulted in any casualties or other
adverse impacts on the public safety.
As discussed in the preamble above,
the FAA believes managing the
precision of rounding digits below and
above the Ec limit (i.e., 1 × 10¥4) is
unrealistic and unnecessary for
administering launch or reentry
licenses. By using only one significant
digit, the Ec limit for launches become
less restrictive than the three existing
launch Ec limits combined (i.e., 90 ×
10¥6). The regulatory-compliance
difference between 90 × 10¥6 and 149
× 10¥6 falls under the accepted FAA
commercial launch safety margin
because the level of imprecision
associated with Ec calculations means
that there is no substantive difference
between these two Ec figures. However,
changing the regulations to use only one
21 This limit is specified in 14 CFR 431.35, which
applies only to reusable launch vehicles. However,
14 CFR 435.35 incorporates and applies 14 CFR
431.35 to all reentry vehicles.
22 AST/FAA launch data as of Feb 1, 2013,
excluding 21 failed launches. This data can be
found at https://www.faa.gov/about/office_org/
headquarters_offices/ast/launch_license. See also
Appendix A in GRA study, which can be found on
the docket for this rule.
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significant digit will improve efficiency
to license applicants in the launch
approval process. In addition, using a
single Ec limit that applies to an
aggregate risk in place of three separate
hazard-specific Ec limitations will
further increase efficiency. As a result,
the FAA believes the final rule
maintains a level of safety for
commercial launches commensurate
with the current level of safety
associated with civil and military
counterparts, but will be cost-relieving
by eliminating some waiver processes
necessary prior to this rule.
The criteria also separately address
the public risk limits of toxic release
and inert and explosive debris risks for
reentry operations by establishing
public safety requirements similar to
current practice. Based on past practices
of administering reentry licenses, the
FAA found it was unrealistic and
unnecessary to administer reentry
licenses with a strict Ec limit of 30 ×
10¥6 for the combination of launch and
reentry debris hazards. Aggregating Ec
limits of toxic release and inert and
explosive debris risks, the Ec limit for
reentry will be commensurate with the
safety requirements applied to civil and
military reentries, and more
conservative than past federal ranges’
practices that gave waivers to allow
non-commercial reentry missions to
proceed with Ec risks on the order of 1
× 10¥3.
The final rule revises reentry Ec limits
for toxic release and inert and explosive
debris risks to be close to the current
FAA reentry licensing practice, on
which we assess the current economic
baseline of the revised Ec limits. The
FAA expects that the nominal increase
in the debris Ec limit on reentry in this
rule will impose no or minimal societal
costs. This is because the FAA has
historically issued a number of waivers
to commercial launches that allowed
those launches to exceed the regulatory
Ec limits as long as those launches did
not exceed the 100 × 10¥6 Ec limits
imposed by the federal ranges. The FAA
has issued waivers to commercial
reentries that allowed the Ec for those
reentries to be considered separately
from the Ec for launch. While the FAA,
as part of its waiver process, has not yet
had to consider whether a reentry
operation should be issued a waiver to
exceed the 30 × 10¥6 Ec limit on reentry,
the FAA expects that its launch waiver
analysis will apply equally to future
reentry operations. Consequently, the
FAA anticipates that many of the future
reentry operations would be eligible for
an FAA waiver in the absence of this
rule. Therefore, this rule will eliminate
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extra expenses of processing such
waivers.
The FAA finalizes the NPRM’s
proposal to include the risks associated
with toxic release in the Ec limitations
for the reentry of a reentry vehicle. By
including toxic release risks during a
reentry operation, the final rule
provides an incremental margin of
safety to the public that did not exist
prior to this final rule.
The propellant load for a reentry
vehicle using parachutes to land is
generally minimal because most of the
propellant will have been used before
landing. The Ec risk for reentry vehicles
landing in the ocean will likely be
below the collective Ec limit. Toxic
release risks for reentry will remain a
minor factor in Ec calculations until a
licensee plans to land a reentry vehicle
on the ground, under power, using
highly toxic hypergolic propellants
carried all the way to touchdown.
Currently, toxic release risk during
launch generally exceeds an Ec of 1 ×
10¥4 when a reentry vehicle with
hypergolic propellants on board has to
separate from its launch vehicle during
an abort-to-orbit, forcing an unplanned
landing on land. Hence, a reentry
vehicle planning to land on the ground
in such an abort-to-orbit scenario will
not get a government launch license
under current U.S. Air Force
regulations. The FAA has not received
applications for reentry vehicles that are
capable of landing on land without
substantial risks of releasing hypergolic
propellants, although the FAA learned
through conversations with the U.S. Air
Force that the industry is in the early
planning stage of developing this type of
vehicle. However, if a reentry risk
analysis found the reentry vehicle
imposed a substantial toxic release risk
to a launch site or outside of the hazard
area, the reentry operator is required
under proposed regulation to choose an
alternative landing site to ensure any
potential toxic release does not exceed
the collective Ec of 1 × 10¥4. Because
operators were required to do a reentry
risk analysis prior to this final rule,
there will be no additional compliance
costs resulting from this final rule. The
necessary reentry risk analysis required
for toxics only by this final rule can be
done within 3 weeks of time by 1.5
analysts being paid at $35 per hour for
the total of $6,300 per study. The FAA
considers this analysis cost to be
minimal.
The changes in the risk limits apply
to all three hazards combined rather
than to each individual hazard. This
final rule permits launch or reentry
operations without requiring operators
to seek FAA waivers as long as the
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aggregated risks will not exceed 0.0001
expected casualties per launch or
reentry mission (i.e., 1 × 10¥4). Both the
commercial space transportation
industry and the government will
receive savings attributable to less
paperwork by avoiding some waiverapplication process expenses.
Based on historical records of requests
and FAA-issued waivers from the
previous Ec limits, the FAA estimates
that launch operators would seek
additional 38 waivers from 2016 to 2025
in the absence of this rule.23 After the
promulgation of this final rule, the FAA
expects these 38 waivers will not be
needed. Thus, this final rule will result
in savings for both the industry and the
FAA, as the industry does not have to
expend resources to request waivers and
the FAA will not have to expend
resources to evaluate waiver requests.
The methodology of this final
regulatory impact analysis (RIA) mirrors
the RIA associated with the NPRM. The
cost of a formal waiver request to
industry ranges from $137,097 for 1,717
hours to $195,094 for 2,443 hours of
aerospace engineering time to prepare
and submit the necessary
documentation to the FAA for
approval.24 Multiplying the forecasted
38 waivers for the 10-year period by the
lower and upper bound costs yields cost
savings ranging from $5.2 million to
$7.4 million. The estimates for the
FAA’s cost savings are based on the
costs of FAA personnel time ranging
from $81,231 for 1,040 hours to
$243,693 for 3,120 hours 25 to process
each waiver request. This range is
related to the characteristics of the
individual launch or reentry request.
Multiplied by the forecasted 38 waivers
granted, the total estimated savings of
FAA personnel time to review requests
and issue waivers range from $3.1
million to $9.3 million. The resulting
savings for both the industry and the
FAA with an estimated mid-point will
be approximately $12.5 million ($8.8
million present value at a 7% discount
rate). The lower and the higher
estimates are approximately $8.3
million and $16.7 million ($5.8 million
and $11.7 million present value at a 7%
discount rate), respectively.
The final rule may also result in costsaving by reducing launch delays and
mission scrubs. The FAA currently does
not have sufficient data to quantify
these savings, but believes the possible
reduction of launch delays and mission
23 GRA
Study 2013, Table 5–7.
is provided in GRA Study 2013,
Appendix C, Table C–3.
25 GRA Study 2013, Appendix C, Tables C–1 and
C–2 for the basis of this value.
24 Basis
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scrubs may increase the overall capacity
of the U.S. space transportation
industry. Accordingly, the FAA sought
comments on cost-savings in the NPRM
and did not receive comments on the
estimated benefits of reduced launch
delays and mission scrubs. Therefore,
the FAA maintains the same benefit
determination.
In summary, the final rule maintains
safety levels for commercial space
transportation commensurate with the
current requirements applied to
launches and reentries. In addition, the
final rule will result in net benefits for
both industry and government. The net
benefit will be achieved by avoiding
costs pertaining to applying and
granting waivers with Ec limits between
90 × 10¥6 and 149 × 10¥6. Further,
related industries may also benefit by
averting unnecessary mission delays
and scrubs.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980
(Pub. L. 96–354) (RFA) establishes ‘‘as a
principle of regulatory issuance that
agencies shall endeavor, consistent with
the objectives of the rule and of
applicable statutes, to fit regulatory and
informational requirements to the scale
of the businesses, organizations, and
governmental jurisdictions subject to
regulation. To achieve this principle,
agencies are required to solicit and
consider flexible regulatory proposals
and to explain the rationale for their
actions to assure that such proposals are
given serious consideration.’’ The RFA
covers a wide-range of small entities,
including small businesses, not-forprofit organizations, and small
governmental jurisdictions.
Agencies must perform a review to
determine whether a rule will have a
significant economic impact on a
substantial number of small entities. If
the agency determines that it will, the
agency must prepare a regulatory
flexibility analysis as described in the
RFA. However, if an agency determines
that a rule is not expected to have a
significant economic impact on a
substantial number of small entities,
section 605(b) of the RFA provides that
the head of the agency may so certify
and a regulatory flexibility analysis is
not required.
The FAA expects many small entities
will benefit from this final rule because
the regulatory revisions to the collective
Ec limits are cost-relieving. The FAA
solicited comments in the NPRM and
did not receive comments with regard to
this certification. Therefore, the FAA
Administrator certifies that this rule
does not have a significant economic
PO 00000
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47025
impact on a substantial number of small
entities.
C. International Trade Impact
Assessment
The Trade Agreements Act of 1979
(Pub. L. 96–39), as amended by the
Uruguay Round Agreements Act (Pub.
L. 103–465), prohibits Federal agencies
from establishing standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Pursuant to these Acts, the
establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective, such the
protection of safety, and does not
operate in a manner that excludes
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards. The FAA assesses the
potential effect of this final rule and
thus determines that the rule does not
impose obstacles to foreign commerce,
as foreign exporters do not have to
change their current export products to
the United States.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4)
requires each Federal agency to prepare
a written statement assessing the effects
of any Federal mandate in a final rule
that may result in an expenditure of
$100 million or more (in 1995 dollars)
in any one year by State, local, and
tribal governments, in the aggregate, or
by the private sector; such a mandate is
deemed to be a ‘‘significant regulatory
action.’’ The FAA currently uses an
inflation-adjusted value of $155 million
in lieu of $100 million. This final rule
does not contain such a mandate;
therefore, the requirements of Title II of
the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)) requires that the
FAA consider the impact of paperwork
and other information collection
burdens imposed on the public. The
FAA has determined that there is no
new requirement for information
collection associated with this final
rule.
F. International Compatibility and
Cooperation
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is FAA policy to
conform to International Civil Aviation
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Organization (ICAO) Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has determined that there are no ICAO
Standards and Recommended Practices
that correspond to these proposed
regulations.
V. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule
under the principles and criteria of
Executive Order 13132, Federalism. The
agency determined that this action will
not have a substantial direct effect on
the States, or the relationship between
the Federal Government and the States,
or on the distribution of power and
responsibilities among the various
levels of government, and, therefore,
does not have Federalism implications.
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
The FAA analyzed this final rule
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The
agency has determined that it is not a
‘‘significant energy action’’ under the
executive order and it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
VI. How To Obtain Additional
Information
rmajette on DSK2TPTVN1PROD with RULES
A. Rulemaking Documents
An electronic copy of a rulemaking
document my be obtained by using the
Internet—
1. Search the Federal eRulemaking
Portal (https://www.regulations.gov);
2. Visit the FAA’s Regulations and
Policies Web page at https://
www.faa.gov/regulations_policies/ or
3. Access the Government Publishing
Office’s Web page at https://
www.gpo.gov/fdsys/.
Copies may also be obtained by
sending a request (identified by notice,
amendment, or docket number of this
rulemaking) to the Federal Aviation
Administration, Office of Rulemaking,
ARM–1, 800 Independence Avenue
SW., Washington, DC 20591, or by
calling (202) 267–9680.
B. Comments Submitted to the Docket
Comments received may be viewed by
going to https://www.regulations.gov and
following the online instructions to
search the docket number for this
action. Anyone is able to search the
electronic form of all comments
received into any of the FAA’s dockets
by the name of the individual
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14:53 Jul 19, 2016
Jkt 238001
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
C. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with
small entity requests for information or
advice about compliance with statutes
and regulations within its jurisdiction.
A small entity with questions regarding
this document, may contact its local
FAA official, or the person listed under
the FOR FURTHER INFORMATION CONTACT
heading at the beginning of the
preamble. To find out more about
SBREFA on the Internet, visit https://
www.faa.gov/regulations_policies/
rulemaking/sbre_act/.
List of Subjects
14 CFR Part 417
Launch and reentry safety, Aviation
safety, Reporting and recordkeeping
requirements, Rockets, Space
transportation and exploration.
14 CFR Part 420
Environmental protection, Launch
safety, Reporting and recordkeeping
requirements, Space transportation and
exploration.
14 CFR Parts 431 and 435
Launch and reentry safety, Aviation
safety, Reporting and recordkeeping
requirements, Rockets, Space
transportation and exploration.
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends chapter III of title 14, Code of
Federal Regulations as follows:
PART 417—LAUNCH SAFETY
1. The authority citation for part 417
continues to read as follows:
■
Authority: 51 U.S.C. 50901–50923.
2. In § 417.107, revise paragraphs
(b)(1) through (4) to read as follows:
■
§ 417.107
Flight safety.
*
*
*
*
*
(b) * * *
(1) A launch operator may initiate the
flight of a launch vehicle only if the
total risk associated with the launch to
all members of the public, excluding
persons in water-borne vessels and
aircraft, does not exceed an expected
number of 1 × 10¥4 casualties. The total
risk consists of risk posed by impacting
inert and explosive debris, toxic release,
and far field blast overpressure. The
FAA will determine whether to approve
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public risk due to any other hazard
associated with the proposed flight of a
launch vehicle on a case-by-case basis.
The Ec criterion applies to each launch
from lift-off through orbital insertion for
an orbital launch, and through final
impact for a suborbital launch.
(2) A launch operator may initiate
flight only if the risk to any individual
member of the public does not exceed
a casualty expectation of 1 × 10¥6 per
launch for each hazard.
(3) A launch operator must establish
any water borne vessel hazard areas
necessary to ensure the probability of
impact (Pi) with debris capable of
causing a casualty for water borne
vessels does not exceed 1 × 10¥5.
(4) A launch operator must establish
any aircraft hazard areas necessary to
ensure the probability of impact (Pi)
with debris capable of causing a
casualty for aircraft does not exceed 1 ×
10¥6.
*
*
*
*
*
PART 420—LICENSE TO OPERATE A
LAUNCH SITE
3. The authority citation for part 420
continues to read as follows:
■
Authority: 51 U.S.C. 50901–50923.
4. In § 420.19, revise paragraph (a)(1)
to read as follows:
■
§ 420.19 Launch site location review—
general.
(a) * * *
(1) A safe launch must possess a risk
level estimated, in accordance with the
requirements of this part, not to exceed
an expected number of 1 × 10¥4
casualties (Ec) to the collective members
of the public exposed to hazards from
the flight.
*
*
*
*
*
■ 5. In § 420.23, revise paragraphs (a)(2),
(b)(3), and (c)(1)(ii) to read as follows:
§ 420.23 Launch site location review—
flight corridor.
(a) * * *
(2) Includes an overflight exclusion
zone where the public risk criteria of 1
× 10¥4 would be exceeded if one person
were present in the open; and
*
*
*
*
*
(b) * * *
(3) Includes an overflight exclusion
zone where the public risk criteria of 1
× 10¥4 would be exceeded if one person
were present in the open; and
*
*
*
*
*
(c) * * *
(1) * * *
(ii) An overflight exclusion zone
where the public risk criteria of 1 ×
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10¥4 would be exceeded if one person
were present in the open.
*
*
*
*
*
■ 6. In § 420.25, revise paragraph (b) to
read as follows:
§ 420.25 Launch site location review—risk
analysis.
*
*
*
*
*
(b) For licensed launches, the FAA
will not approve the location of the
proposed launch point if the estimated
expected casualty exceeds 1 × 10¥4.
■ 7. In Appendix C to part 420, revise
paragraphs (a)(2) and (d)(1) and (2) to
read as follows:
Appendix C to Part 420—Risk Analysis
(a) * * *
(2) An applicant shall perform a risk
analysis when a populated area is located
within a flight corridor defined by either
appendix A or appendix B. If the estimated
expected casualty exceeds 1 × 10¥4, an
applicant may either modify its proposal, or
if the flight corridor used was generated by
the appendix A method, use the appendix B
method to narrow the flight corridor and then
redo the overflight risk analysis pursuant to
this appendix. If the estimated expected
casualty still exceeds 1 × 10¥4, the FAA will
not approve the location of the proposed
launch point.
*
*
*
*
*
(d) * * *
(1) If the estimated expected casualty does
not exceed 1 × 10¥4, the FAA will approve
the launch site location.
(2) If the estimated expected casualty
exceeds 1 × 10¥4, then an applicant may
either modify its proposal, or, if the flight
corridor used was generated by the appendix
A method, use the appendix B method to
narrow the flight corridor and then perform
another appendix C risk analysis.
8. In Appendix D to part 420, revise
paragraphs (a)(5) and (e)(2) and (3) to
read as follows:
■
Appendix D to Part 420—Impact
Dispersion Areas and Casualty
Expectancy Estimate for an Unguided
Suborbital Launch Vehicle
(a) * * *
(5) If the estimated Ec is less than or equal
to 1 × 10¥4, the FAA will approve the launch
point for unguided suborbital launch
vehicles. If the estimated Ec exceeds 1 ×
10¥4, the proposed launch point will fail the
launch site location review.
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*
*
*
*
*
(e) * * *
(2) If the estimated expected casualty does
not exceed 1 × 10¥4, the FAA will approve
the launch point.
(3) If the estimated expected casualty
exceeds 1 × 10¥4, then an applicant may
modify its proposal and then repeat the
impact risk analysis in accordance with this
appendix D. If no set of impact dispersion
areas exist which satisfy the FAA’s risk
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Jkt 238001
threshold, the applicant’s proposed launch
site will fail the launch site location review.
PART 431—LAUNCH AND REENTRY
OF A REUSABLE LAUNCH VEHICLE
(RLV)
9. The authority citation for part 431
continues to read as follows:
■
Authority: 51 U.S.C. 50901–50923.
10. In § 431.35, revise paragraph (b)(1)
to read as follows:
■
§ 431.35 Acceptable reusable launch
vehicle risk.
*
*
*
*
*
(b) * * *
(1) To obtain safety approval, an
applicant must demonstrate the
following for public risk:
(i) The risk to the collective members
of the public from the proposed launch
meets the public risk criteria of
§ 417.107(b)(1) of this chapter;
(ii) The risk level to the collective
members of the public, excluding
persons in water-borne vessels and
aircraft, from each proposed reentry
does not exceed an expected number of
1 × 10¥4 casualties from impacting inert
and explosive debris and toxic release
associated with the reentry; and
(iii) The risk level to an individual
does not exceed 1 × 10¥6 probability of
casualty per mission.
*
*
*
*
*
■ 11. In § 431.43, revise paragraph (d)(2)
to read as follows:
*
*
*
*
*
(d) * * *
(2) The expected number of casualties
to members of the public does not
exceed 1 × 10¥4 given a probability of
vehicle failure equal to 1 (pf=1) at any
time the IIP is over a populated area;
*
*
*
*
*
PART 435— REENTRY OF A REENTRY
VEHICLE OTHER THAN A REUSABLE
LAUNCH VEHICLE (RLV)
12. The authority citation for part 435
continues to read as follows:
■
Authority: 51 U.S.C. 50901–50923.
■
13. Revise § 435.35 to read as follows:
§ 435.35 Acceptable reusable launch
vehicle risk.
To obtain safety approval for reentry,
an applicant must demonstrate the
following for public risk:
(a) The risk to the collective members
of the public from the proposed launch
meets the public risk criteria of
§ 417.107(b)(1) of this chapter;
(b) The risk level to the collective
members of the public, excluding
persons in water-borne vessels and
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47027
aircraft, from each proposed reentry
does not exceed an expected number of
1 × 10¥4 casualties from impacting inert
and explosive debris and toxic release
associated with the reentry; and
(c) The risk level to an individual
does not exceed 1 × 10¥6 probability of
casualty per mission.
Issued under authority provided by 49
U.S.C. 106(f), and 51 U.S.C. 50903, 50905 in
Washington, DC, on July 11, 2016.
Michael P. Huerta,
Administrator.
[FR Doc. 2016–17083 Filed 7–19–16; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2016–0650]
RIN 1625–AA00
Safety Zone; Houma Navigation Canal
Miles 23 to 23.5, Dulac, LA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
all navigable waters surface to bottom,
of the Houma Navigation Canal from
mile marker 23 to 23.5. The safety zone
is needed to protect personnel, vessels,
and the marine environment from
potential hazards created by
replacement work of the Falgout Canal
Pontoon Bridge. Entry of vessels or
persons into this zone is prohibited
unless specifically authorized by the
Captain of the Port Morgan City or a
designated representative.
DATES: This rule is effective without
actual notice from 7:00 a.m. until 7:00
p.m. daily from July 20, 2016 through
July 27, 2016. For the purposes of
enforcement, actual notice will be used
from 7:00 a.m. until 7:00 p.m. daily
from July 7, 2016 through July 20, 2016.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2016–
0650 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, contact
MSTC Justin Helton, Marine Safety Unit
Houma, U.S. Coast Guard; telephone
985–850–6457, email Justin.K.Helton@
uscg.mil.
SUMMARY:
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]]>Agencies
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Rules and Regulations]
[Pages 47017-47027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17083]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 417, 420, 431, and 435
[Docket No.: FAA-2014-0418; Amdt. Nos. 417-4, 420-7, 431-4 and 435-3]
RIN 2120-AK06
Changing the Collective Risk Limits for Launches and Reentries
and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships
and Aircraft
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The FAA is amending its regulations concerning the collective
risk limits for commercial launches and reentries. These changes
include: Separating the risk limits for commercial launches and
reentries; aggregating the risk posed by impacting inert and explosive
debris, toxic release, and far field blast overpressure; limiting the
aggregate risk for these three hazards to 1 x 10-4; reducing
the number of significant digits used in launch and reentry risk
analysis; and various non-substantive clarifying revisions. These
changes update FAA regulations to reflect the United States
Government's greater experience with commercial launch and reentry and
to align more closely the FAA's risk standards with those of other
United States Federal agencies, while continuing to protect public
safety.
DATES: Effective September 19, 2016.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, contact Rene Rey, AST-300, Office of Commercial Space
Transportation, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591; telephone (202) 267-7538; email
Rene.Rey@faa.gov.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The Commercial Space Launch Act of 1984, as amended and codified at
51 United States Code (U.S.C.) Subtitle V--Commercial Space
Transportation, Ch. 509, Commercial Space Launch Activities, 51 U.S.C.
50901-50923 (the Act), authorizes the Secretary of Transportation and
thus the FAA, through delegations, to oversee, license, and regulate
commercial launch and reentry, and the operation of launch and reentry
sites as carried out by U.S. citizens or within the United States. 51
U.S.C. 50904, 50905. The Act 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. 51 U.S.C. 50905. Section 50901(a)(7), in relevant part,
directs the FAA to regulate private sector launches, reentries, and
associated services only to the extent necessary to protect the public
health and safety and safety of property. The FAA is also responsible
for encouraging, facilitating, and promoting commercial space launches
and reentries by the private sector. 51 U.S.C. 50903.
I. Overview of Final Rule
The FAA is adopting this final rule to revise certain regulations
related to the collective risk limits for commercial launches and
reentries in part 417 (Launch Safety), part 420 (License to Operate a
Launch Site), part 431 (Launch and Reentry of a Reusable Launch Vehicle
(RLV)), and part 435 (Reentry of a Reentry Vehicle Other Than a
Reusable Launch Vehicle (RLV)) of Title 14 of the Code of Federal
Regulations (14 CFR).
This final rule divides the risk analysis for launch and reentry,
providing a separate risk budget for each. For all launches, regardless
of vehicle type, this final rule requires a single expected number of
casualties (Ec) be calculated by aggregating the risk posed
to the collective members of the public from three hazards: Impacting
and inert explosive debris, toxic release, and far field blast
overpressure. This final rule also revises the acceptable risk
threshold for launch from an Ec of 30 x 10-6 for
each hazard to an Ec of 1 x 10-4 for all three
hazards combined. Furthermore, this final rule expresses the revised
Ec limit using the correct number of significant digits to
properly represent the uncertainty in Ec calculations. This
final rule changes the FAA's collective risk limits for launch and
reentry to more closely match the Ec standard currently used
by the United States (U.S.) Air Force and the National Aeronautics and
Space Administration (NASA) for government missions, and to account for
the level of uncertainty that exists in the Ec calculations.
This final rule also makes two revisions to Sec. 417.107 to
clarify the launch and reentry regulations. The first revision removes
the phrase ``including each planned impact'' from Sec. 417.107(b)(1)
to clarify that public risk is assessed from lift-off through orbital
insertion for orbital launches and from lift-off to final impact for
suborbital launches. The second revision modifies Sec. 417.107(b)(3)
and (b)(4) to make transparent the criteria for establishing hazard
areas by replacing the references to equivalent levels of safety for
water borne and aircraft hazard areas required for launch from a
federal launch range with the actual levels of safety provided by
hazard areas for launches from a federal range in 2006, the year the
FAA promulgated Sec. 417.107. Under Sec. 417.107(b)(3), a hazard area
for water borne vessels satisfies part 417 if the probability of impact
with debris capable of causing a casualty on any potential water borne
vessel within the hazard area does not exceed 0.00001 (1 x
10-5). Under Sec. 417.107(b)(4), a hazard area for aircraft
will satisfy part 417 if the probability of impact with debris capable
of causing a casualty on any potential aircraft within that hazard area
does not exceed 0.000001 (1 x 10-6). These clarifying edits
do not change the risk requirement for launch licensees or launch
license applicants.
Summary of the Costs and Benefits of the Final Rule
The final rule will result in net benefits for both the commercial
space transportation industry (industry) and government by reducing the
number of waivers that must be prepared by the industry and processed
by the government for launches with an aggregate Ec between
90 x 10-6 and 149 x 10-6, and by averting
unnecessary mission delays and scrubs. The resulting savings for both
the industry and the FAA from reducing the number of waivers range from
a low estimate of approximately $8.3 million to a high estimate of
$16.7 million ($5.8 million and $11.7 million present value at a 7%
discount rate, respectively).
II. Background
An operator conducts a launch using an expendable launch vehicle
(ELV) or a reusable launch vehicle (RLV). An ELV is a launch vehicle
whose
[[Page 47018]]
propulsive stages are flown only once. 14 CFR 401.5. An RLV is a launch
vehicle that is designed to return to Earth substantially intact and,
therefore, may be launched more than one time or that contains vehicle
stages that may be recovered by a launch operator for future use in the
operation of a substantially similar launch vehicle. Id. Reentry is
conducted with RLVs or other reentry vehicles. A reentry vehicle is a
vehicle designed to return from Earth orbit or outer space to Earth
substantially intact, and includes a reentering RLV. Id.
Parts 417, 420, 431, and 435 (collectively, the collective risk
regulations) limit the collective risk that a commercial launch or
reentry may pose to the public. The FAA's collective risk regulations,
as originally promulgated, were based primarily on Ec limits
that the U.S. Air Force imposed on launches from federal launch ranges
at the time the FAA began establishing its own Ec limits.\1\
In addition to imposing Ec limits on risk posed by launches
and reentries to collective members of the public, these regulations
also impose separate limits on the risk posed by these operations to
individual members of the public.
---------------------------------------------------------------------------
\1\ See, e.g., Commercial Space Transportation Licensing
Regulations, Final Rule (Launch Licensing Rule), 64 FR 19586, 19605
n.11 (Apr. 21, 1999).
---------------------------------------------------------------------------
In July 2014, the FAA published in the Federal Register a notice of
proposed rulemaking (2014 NPRM) proposing various revisions to the
FAA's launch and reentry regulations.\2\ This final rule adopts the
proposal outlined in the 2014 NPRM, with minor modifications and
clarifications in response to comments from the public.
---------------------------------------------------------------------------
\2\ Changing the Collective Risk Limits for Launches and
Reentries and Clarifying the Risk Limit Used to Establish Hazard
Areas for Ships and Aircraft, 79 FR 42241 (July 21, 2014).
---------------------------------------------------------------------------
A. Statement of the Problem
Prior to the 2014 NPRM, developments in the industry and among U.S.
Government agencies led the FAA to question its collective risk
regulations. In 2010, the U.S. Air Force, after conducting over 5,000
launches under a 30 x 10-6 Ec limit, determined
that it could increase its Ec limit from 30 x
10-6 per hazard to 100 x 10-6 for the aggregate
public risk associated with debris, toxicity, and far field blast
overpressure without harming public safety. The U.S. Air Force's new
Ec standards also apply a separate Ec limit to
reentry, limiting reentry Ec to 100 x 10-6 for
the aggregate public risk associated with all hazards, which typically
include debris, toxicity, and far field blast overpressure. In
addition, in 2010 NASA also revised its risk acceptability policy to
limit the Ec from launch and reentry missions to 100 x
10-6 each.
Because the FAA's collective risk regulations were based on the
U.S. Air Force's former 30 x 10-6 limit--a limit that both
the U.S. Air Force and NASA, after considerable experience, have now
revised--the FAA questioned in the 2014 NPRM whether its collective
risk limits, revised by this final rule, continued to represent
appropriate public risk criteria for commercial ELV and RLV operations.
In addition, the FAA's own experience led the agency to question
whether those Ec limits created an obstacle to NASA's
implementation of the National Space Policy (e.g., NASA proposed
commercial flights to the International Space Station that would not
meet FAA's current Ec limits).\3\
---------------------------------------------------------------------------
\3\ See National Space Policy of the United States of America
(June 28, 2010), available at https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf.
---------------------------------------------------------------------------
Finally, the FAA also sought to address in the 2014 NPRM whether
its former collective risk regulations sufficiently distinguished
between commercial launch and reentry risk. Instead of regulating risk
based on whether the operation in question was a launch or a reentry,
the former collective risk regulations focused on the type of vehicle
used in the operation, namely whether the vehicle was an ELV, RLV, or a
reentry vehicle.
B. Summary of the 2014 NPRM
The 2014 NPRM proposed several revisions to the FAA's risk
framework. These proposals included: Aggregating launch hazards and
establishing an Ec limit of 1 x 10-4, thus
reducing the number of significant digits in a launch or reentry risk
analysis; separating the risk limits for the launch and reentry of a
reentry vehicle; including toxic release as a hazard in the risk
analysis for reentries; and clarifying the acceptable risk threshold
for impact with ships and aircraft in hazard areas. For more detailed
information, interested parties may consult the preamble of the 2014
NPRM.
C. General Overview of Comments
The comment period for the July 2014 NPRM closed on October 20,
2014. The FAA received comments from nine commenters, including ACTA
Inc. (ACTA), Blue Origin, LLC (Blue Origin), Lockheed Martin
Corporation (Lockheed Martin), Orbital Sciences Corporation (Orbital
Sciences), Sierra Nevada Corp. (Sierra Nevada), Space Exploration
Technologies Corp. (SpaceX), XCOR Aerospace (XCOR), and two individual
commenters. Most of the commenters supported the proposed changes, and
some suggested additional changes that are discussed more fully below.
Several commenters fully supported the proposed changes, and one
commenter opposed the proposed changes. The comments focused on the
following general areas of the proposal:
Individual risk limits
Separation of launch and reentry
Significant figures
Ship and aircraft hazard areas
Including toxic release in the reentry risk analysis
III. Discussion of Public Comments and Final Rule
A. Individual Risk
As discussed in the 2014 NPRM, this final rule does not
substantively revise the FAA's limitation on risk posed to individuals
found in Sec. Sec. 417.107, 431.35, and 435.35.\4\ The individual risk
limits in Sec. 417.107(b)(2) prohibit launch risk to an individual
from exceeding 1 x 10-6 for each hazard (debris, toxic
release, and far field blast overpressure) for launch of an ELV. For
the launch of a RLV or other reentry vehicle, Sec. Sec.
431.35(b)(1)(ii) and 435.35 continue to prohibit the risk to an
individual from exceeding 1 x 10-6 per mission. The FAA
proposed no change to this risk limit, so any change now would be
outside the scope of the proposal. Nonetheless, the comments raise
issues of interest and are addressed below.
---------------------------------------------------------------------------
\4\ However, it should be noted that the FAA made a non-
substantive change to 417.107(b)(2) to improve consistency and
clarity.
---------------------------------------------------------------------------
XCOR agreed that no change is necessary because it is easier for
launch operators to mitigate risk to a particular individual than the
collective public, and because the FAA has never waived individual risk
for launches in the past. On the other hand, Orbital Sciences
recommended that the FAA ``[e]xamine historical data for all U.S.
launches to determine the highest level of risk realized by any
individual member of the public and propose a more realistic . . . risk
[figure] based on this successful precedent.'' Orbital Sciences also
recommended that the FAA adopt ``identical risk limits for individual
members of the public'' for U.S. Government and commercial launches.
The FAA disagrees with Orbital Sciences' recommendation to revise
the individual risk threshold. Unlike the FAA's collective risk
limitation, the FAA is aware of only a small number of historical U.S.
government launches for which the predicted individual risk for any one
member of the public exceeded
[[Page 47019]]
1 x 10-6. From a statistical perspective, this casualty-free
launch record is the expected outcome because 1 x 10-6
corresponds to a one-in-a-million chance of a particular person being a
casualty and there have been no more than a few thousand launches from
the United States. The FAA therefore finds insufficient evidence at
this time to justify relaxing the current individual risk limits, which
are an integral part of an interdependent set of safety requirements
that have produced a flawless public safety record for U.S. launches
and reentries. Furthermore, the FAA notes that limiting risk to
individual members of the public at the 1 x 10-6 level is
consistent with the consensus standard produced by U.S. range safety
organizations as adopted by NASA and the U.S. Air Force.
ACTA stated that maintaining the current individual risk thresholds
perpetuates inconsistent individual risk standards for ELVs, RLVs, and
reentry vehicles. ACTA observed that Sec. 417.107(b)(1)(ii) limits
individual risk to 1 x 10-6 for each hazard for ELVs. ACTA
stated that this was inconsistent with the risk threshold for RLVs and
reentry vehicles in Sec. 431.35(b)(2)(ii), which limits total risk to
an individual to 1 x 10-6 over the course of the entire
mission, without any reference to specific hazards. As a result, ACTA
argued, ELV missions would have a different individual risk criterion
than missions involving an RLV or other reentry vehicle.
ACTA's recommendation to harmonize all individual risk limits is
outside the scope of the current rulemaking. Also, the FAA has
insufficient data to justify a change to the individual risk criteria
for either launch or reentry, and thus no change was proposed. Finally,
the current regulatory framework governing individual risk for launch
and reentry risk has successfully protected the public since 2000.
B. Separating Ec for Launch and Reentry
The FAA proposed to separate the Ec limits for the
launch and reentry of all reentry vehicles, instead of applying a
single risk limit to both phases of a mission.\5\
---------------------------------------------------------------------------
\5\ The separation of Ec limits for launch and
reentry affects Sec. Sec. 431.35(b) and 435.35.
---------------------------------------------------------------------------
Blue Origin, Lockheed Martin, Orbital Sciences, and SpaceX fully
supported the proposal to separate launch and reentry risk. ACTA
supported the proposal to separately assess launch and reentry risk if
reentry occurs after a health check, but noted that ``separation of
risk budgets for launch and reentry ignores the risk contribution from
a failure to initiate a planned reentry.'' In particular, ACTA noted
that ``[t]here does not appear to be any consideration for consequences
if the health check prior to reentry fails. . . . [The vehicle's] orbit
will eventually degrade and re-enter . . . [and the] risk of this
potentially uncontrolled re-entry (if the health of the vehicle can
never be restored) appears to be neglected.''
ACTA is correct that the FAA does not regulate the risk associated
with reentry vehicles or parts of reentry vehicles that do not initiate
or attempt to initiate a purposeful reentry. As the FAA has explained,
the Act limits the FAA's licensing of reentry to scenarios involving
purposeful reentry; \6\ therefore, the FAA is prohibited from
considering the ``possibility of a random uncontrolled reentry that
occurs as a result of a reentry vehicle ceasing to function upon
arrival in orbit.'' \7\
---------------------------------------------------------------------------
\6\ Waiver of Acceptable Mission Risk Restriction for Reentry
and a Reentry Vehicle, 75 FR 75619, 75620 (Dec. 6, 2010).
\7\ The Waiver explained that ``[b]ecause 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'' limitations on the FAA's authority.
---------------------------------------------------------------------------
Although the 2014 NPRM did not propose to change the requirement
that suborbital launches and reentries be subject to a single launch
Ec, the FAA invited comment on the issue. Sierra Nevada
commented that suborbital flights also should have separate risk limits
for launch and reentry because each phase of flight required
independent operational decisions.
XCOR, on the other hand, commented that suborbital vehicles should
continue to have a single risk limit because, for a suborbital launch,
``reentry is a physical inevitab[ility]''; there is ``no intervening
event between launch and reentry''; and that ``reentry is closely
proximate in time--four minutes, for most concepts to launch.''
The FAA agrees with XCOR that a suborbital mission should continue
to be analyzed using a single risk budget for the entire mission, from
launch through final impact, because there is no intervening event
between launch and reentry and because reentry is a physical
inevitability. Moreover, separating launch and reentry risk limits for
suborbital flights is beyond the scope of this final rule because it
would require revising the definitions of ``reentry'' and ``launch''
found in Sec. 401.5, changes the NPRM did not propose.
The FAA will require separate analysis of the risks associated with
launch and reentry because the two are separate events. A launch may
not always be successful, and a single risk limit that encompasses both
launch and reentry makes reentry risk calculations unnecessarily
dependent on the probability of failure associated with launch. The FAA
leaves unchanged, however, the requirement that suborbital launches and
reentries must comply with a single launch Ec limit that
encompasses the entire operation from launch through final impact.
C. Revising the Acceptable Risk Standard
The FAA proposed to revise the acceptable risk limit for launch to
1 x 10-4, encompassing all three hazards--debris, toxic
release, and far field blast overpressure. This would amend the risk
framework's three components by aggregating the analysis of debris,
toxics, and far field blast overpressure; establishing a new, unified
risk standard for the three primary hazards combined; and revising the
risk standard to be expressed using one significant figure. The
commenters addressed each of these issues separately.
1. Aggregating Ec for Debris, Toxics, and Far Field Blast
Overpressure
ACTA, Orbital Sciences, and SpaceX supported the proposal to
aggregate risk calculations. The FAA received no negative comments on
this component of the proposal. Therefore, this final rule replaces the
prior requirement to satisfy three separate Ec criteria (one
each for debris, toxics, and far field blast overpressure) with a
single Ec criterion accounting for all three primary
hazards.
2. Revising the Number of Significant Figures
Numerous commenters, including Blue Origin, Lockheed Martin,
Orbital Sciences, and SpaceX, supported the FAA's proposal to express
the risk threshold using one significant figure. Lockheed Martin stated
that the proposal ``would improve efficiency and maintain a level of
safety for commercial launches that is commensurate with the current
high level of safety associated with civil and military launches.''
ACTA and an individual commenter advocated against changing the
number of significant figures. An individual commenter recommended that
one significant figure would be more appropriate at the level of 1 x
10-5. ACTA agreed with the proposal to increase the risk
limitations insofar as ``it is reasonable to apply a higher
acceptability limit (around 100 x
[[Page 47020]]
10-6),'' but also stated the FAA's proposal to both raise
the limit and reduce the number of significant figures resulted in an
effective increase of ``the acceptable risk limit to 50% above current
Air Force and NASA practice.'' Referring to the effects of revising the
number of significant figures, ACTA stated that ``the difference
between 100 x 10-6 and 149 x 10-6 is real and
significant.'' ACTA also stated that, because of this ``effective'' 50%
increase, the FAA's proposal would not maintain safety levels for
commercial space transportation commensurate with the current
requirements for civil and military reentries. Finally, ACTA also
disagreed with the FAA's rationale for increasing the acceptable risk
limit. In particular, ACTA stated that it is inappropriate to exceed
the Range Commanders Council (RCC) 321 consensus standard; the success
of a relatively small number of missions operated under waivers is
statistically irrelevant; and the continued use of waivers is
reasonable in a developing industry.
The FAA disagrees that the difference between 100 x 10-6
and 149 x 10-6 is real and significant because the
uncertainty associated with many of the variables that go into
determining Ec are too large to justify using more than one
significant digit. The FAA and others, including ACTA, have performed
extensive uncertainty analyses for both launch area and downrange
overflight. These analyses accounted for aleatory-- irreducible--and
epistemic--modeling--sources of uncertainty, including the inherent
variability in the impact distribution due to wind and lift effects for
irregular debris following failure; probability of failure; casualty
area for people in shelters that are impacted by debris; size of the
debris impact probability distribution; yield from exploding propellant
and propellant tanks; probability of injury from a blast wave for
people in buildings or unsheltered; and population density. Uncertainty
also exists in the Ec estimate for overflight because of the
uncertainty in the time of launch,cargo debris, and different methods
to characterize the normal trajectory dispersions based on input data
provided by the launch operator.
A standard public risk analysis for launch or reentry produces a
single Ec value, but these state-of-the-art analyses
demonstrate that the modeling uncertainties are too large to justify
calculating Ec to more than one significant figure.\8\ In
fact, the uncertainty in a vehicle's probability of failure alone is
generally large enough to render meaningless any calculated differences
involving more than one significant digit, such as a calculated
difference of 100 x 10-6 compared to 149 x 10-6
in Ec estimates for a commercial launch.\9\ Specifically,
during SpaceX's third Falcon 9 mission (F9-003), two probability of
failure analysis approaches applied by the two major federal ranges for
commercial launches, which the FAA deemed equally valid based on the
requirements in Sec. 417.224, produced mean probability of failure
estimates during Eurasian over-flight that varied by approximately 40
percent. Also, the uncertainty in the Ec estimate scales
linearly with the statistical uncertainty associated with any
probability of failure analysis method, even when the assumptions of
the model are absolutely true. For example, applying the binomial
approach in part 417, appendix A, Sec. 417.25(b)(5)(iii), to a new
vehicle with a record of no failures in the first two flights produces
a reference probability of failure estimate of 0.28. Even if the
assumption of Bernoulli trials \10\ inherent in the binomial approach
is absolutely true, which is doubtful given the evolutionary nature of
expendable launch vehicles, particularly during the first several
flights, there is about a 20 percent chance that the true probability
of failure is at least twice the reference probability of failure
estimate. It is impossible to know the true probability of failure for
any launch vehicle flight. The FAA believes that the uncertainty in the
probability of failure alone always renders meaningless any more than
one significant digit in any commercial launch or re-entry
Ec estimate.
---------------------------------------------------------------------------
\8\ In fact, an uncertainty analysis produces a set of point
estimates, each of which is an equally valid result, to quantify the
uncertainty in the Ec estimate. ACTA itself developed a
tool that computes the uncertainty in the point estimate of
Ec by using multiple input data sets within the range of
feasibility given the uncertainty associated with the input data,
together with a multiple sets of factors applied to each sub-model
to account for the estimated biases and uncertainties in the
applicable sub-models.
\9\ Of course, the probability of failure uncertainty is very
large for relatively new vehicles, which are most likely to have
risk estimates near the 1 x 10-4 Ec limit.
However, even vehicles with extensive flight history, such as the
Delta II, have probability of failure estimates that vary by a
factor of two or more based on the analysis approaches applied by
the two major federal ranges where commercial launches most often
occur. For example, the Delta II demonstrated nine failures in 227
launches in advance of the GRAIL mission. Valid probability of
failure analysis methods produced mean estimates of probability of
failure for the GRAIL launch between less than 2% to more than 4%,
depending on whether and how reliability growth was accounted for.
\10\ All expendable launch vehicle failure probability analysis
methods used by Federal ranges today assume that launches may be
treated as Bernoulli trials: That the vehicle has a constant ``true
probability'' of failure for each and every launch, and that the
outcome of each launch is statistically independent of all others. A
toss of an evenly weighted coin is a classic example of a Bernoulli
trial. Of course, launches are not exactly Bernoulli trials because
no two launches are precisely the same. For example, the vehicle may
be modified or improved as needed during a sequence of launches,
particularly if it has failed on previous launches, and there are
natural variations due to environmental conditions during the
vehicle manufacturing, processing, and launch.
---------------------------------------------------------------------------
ACTA provided three alternatives to the FAA's July 2014 proposal.
These alternatives included (1) using ``the approach specified in RCC
321-10'' in which increasing degrees of analysis and mitigation are
required as the risk increases above 30 x 10-6 and again at
100 x 10-6; (2) ``[e]xpress[ing] the limit that
log10(EC) is less than -4.0 (to two significant figures'';
and (3) ``[a]pply[ing] a limit of 9 x 10-5 rather than 1 x
10-4 which results in an effective limit of 95 x
10-6.''
The FAA appreciates the potential value in using the RCC 321-10
approach, in which increasing degrees of analysis and mitigation are
required as the risk increases. Such a dramatic change, however, is
beyond the scope of this rulemaking. The FAA disagrees with ACTA's
recommendations to ``[e]xpress the limit that log10(EC) is
less than -4.0 (to two significant figures'' or ``[a]pply[ing] a limit
of 9 x 10-5 rather than 1 x 10-4 which results in
an effective limit of 95 x 10-6'' because either of those
approaches would still imply more significant digits in the
Ec estimate than justified based on the Ec
uncertainty analyses summarized above.
3. Establishing an Acceptable Risk Limit of 1 x 10-4
Under the 2014 NPRM, Sec. Sec. 417.107(b)(1), 431.35(b)(1)(i), and
435.35(b) would establish an acceptable collective risk limit of 1 x
10-4. Two commenters, Lockheed Martin and SpaceX, supported
the proposal without additional significant comment. SpaceX noted that
the proposal would align the FAA's risk limit with the standards set by
other organizations within the U.S. Government.
Orbital Sciences supported the proposal but also recommended that
the FAA ``[e]xamine historical data for all U.S. launches and determine
the highest level of collective risk realized by the public [to]
propose a more realistic . . . collective risk [number] based on this
successful precedent.'' Similarly, Blue Origin recommended that the
collective risk number be revised higher than proposed, to 1 x
10-3. Blue Origin noted that Federal ranges have, in the
past, waived risks associated with non-commercial reentry to as high as
1 x 10-3, and stated, ``[t]he commercial
[[Page 47021]]
spaceflight industry should be held to the standard that the nation's
civil and military programs are held to in practice.'' \11\ Blue Origin
suggested that reducing the need for waivers would increase
transparency and ``more closely reflect FAA's regulatory practice,
rather than relying on a waiver process such as practiced by NASA and''
the U.S. Air Force. Blue Origin further stated that, if the FAA adopts
``a risk level that differs from [the FAA's] actual practice, the
commercial spaceflight industry will be left not knowing what the real,
actual risk level will be in practice,'' suggesting that reducing the
agency's reliance on waivers would provide an important measure of
stability and predictability to the commercial space industry.
---------------------------------------------------------------------------
\11\ Emphasis in original.
---------------------------------------------------------------------------
The FAA disagrees with Orbital Sciences' and Blue Origin's
recommendations to increase the Ec limit beyond 1 x
10-4. The United States has achieved a flawless public
safety record for orbital launch and re-entry missions in part because
of a comprehensive and interdependent set of public safety requirements
developed and implemented by numerous, cooperating entities within the
U.S. government. Three U.S. government entities, the U.S. Air Force,
NASA, and the FAA, have oversight of the safety of launches. Both the
U.S. Air Force and NASA, working alone and collaborating through
organizations such as the RCC and the Common Standards Working Group,
have examined the available data and determined that 100 x
10-6, also expressed as 1 x 10-4, is an
appropriate standard for acceptable risk.\12\ There are an insufficient
number of casualty-free launches and reentries with Ec
greater than 1 x 10-4 to justify departing from the standard
adopted by the U.S. Air Force and NASA. In the few cases where waivers
were granted by the FAA, prior to and including 2014, the respective
Ec was always less than the risk levels previously approved
for government launches. Hence, any precedent for granting waivers for
prior non-commercial reentries is not sufficient justification for
implementing a more lenient risk limit, especially in light of the
increased scrutiny given to each waiver applicant.
---------------------------------------------------------------------------
\12\ See Range Commanders Council Risk Committee of the Range
Safety Group, Common Risk Criteria for National Test Ranges, RCC
321-10, White Sands Missile Range, New Mexico, 2010.
---------------------------------------------------------------------------
Moreover, a fundamental tenent of risk management, both as applied
to the regulation and general safety management of various industries,
is to set acceptability criteria for collective risk that are below the
level that may be acceptable in unusual circumstances or on a short
term basis. For aviation risk management, the FAA has identified risk-
informed Continued Airworthiness Assessment Methodologies (CAAM) that
include short term acceptable risks that are orders of magnitude
greater than long term acceptable risk levels.\13\ Thus, AC 39-8 is
another example of the FAA adopting a risk management approach where
basic acceptability criteria are more stringent than may be acceptable
in unusual circumstances or on a short term basis. Note that the FAA's
use of quantitative risk analysis results is consistent with the risk-
informed approach to regulatory decision-making adopted by the Nuclear
Regulatory Commission (NRC). In 1999, the NRC wrote that ``a `risk-
informed' approach to regulatory decision-making represents a
philosophy whereby risk insights are considered together with other
factors to establish requirements that better focus licensee and
regulatory attention on design and operational issues commensurate with
their importance to public health and safety.'' \14\
---------------------------------------------------------------------------
\13\ Federal Aviation Administration, Advisory Circular No. 39-
8, Continued Airworthiness Assessments of Powerplants and Auxiliary
Power Unit Installations of Transport Category Planes, Washington,
DC, September 2003.
\14\ U.S. Nuclear Regulatory Commission, Commission Issuance of
White Paper on Risk-informed and Performance-based Regulation,
Yellow Announcement # 019, Washington, DC, dated March 11, 1999.
---------------------------------------------------------------------------
In light of these considerations and all currently available data,
the FAA finds that a collective Ec limit of 1 x
10-4 reflects an appropriate consensus safety risk standard
for launch and re-entry. Consistent with Executive Orders 13563 and
13610, the FAA plans to periodically review and revise this public risk
standard, if warranted, based upon factors such as the quantity of
launch and reentry activities, demonstrated reliability and safety
record and benefits provided, technological capabilities, and maturity
of the industry.
ACTA and an individual commenter cautioned against justifying any
increase to the acceptable risk standards by reference to either a
relatively small number of successful launches or the uncertainty of
launch risk calculations. The individual commenter recommended that any
increase to the acceptable risk limits be premised on a determination
that higher numbers still adequately ensure public safety.
The FAA disagrees with ACTA's and the individual commenter's
premise concerning the basis of this final rule. Contrary to their
assertion, the FAA is not relying on the historical success of a
relatively small number of past launches as a justification for
increasing the acceptable risk standard. Rather, the FAA, by statute,
is authorized to regulate ``only the extent necessary'' to protect
public health and safety. 51 U.S.C. 50901(a)(7). The U.S. Air Force and
NASA, two federal agencies with significant expertise in this area,
have both examined the currently available data and concluded that it
does not justify an aggregated Ec limit lower than 100 x
10-6. Furthermore, there are published materials that
explain the rationale for the collective risk limit adopted both by the
U.S. Air Force and NASA.15 16 17 The currently available
data does not justify a regulatory restriction on Ec for
commercial licensees that is more stringent than the standards adopted
both by the U.S. Air Force and NASA.
---------------------------------------------------------------------------
\15\ See Range Commanders Council Risk Committee of the Range
Safety Group, Common Risk Criteria for National Test Ranges, RCC
321-10, White Sands Missile Range, New Mexico, 2010.
\16\ Wilde P., Public Risk Criteria and Rationale for Commercial
Launch and Reentry, 5th IAASS Symposium, Versailles, France, October
2011.
\17\ Wilde, P. Public Risk Tolerability Criteria for Space
Launch and Reentry, Presented at the 51st Scientific and Technical
Subcommittee of the United Nations Committee on the Peaceful Uses of
Outer Space, Vienna, Austria, 18 Feb. 2014.
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D. Clarifying Hazard Areas for Ships and Aircraft
Prior to this final rule, Sec. 417.107(b)(3) and (4) required the
launch operator of an ELV to implement and establish ship and aircraft
hazard areas providing an equivalent level of safety to that provided
by the ship and aircraft hazard areas implemented for launch from a
Federal launch range. 71 FR 50508. The FAA proposed to amend Sec.
417.107(b)(3) and (4) to clarify the requirements for hazard areas for
ships and aircraft, respectively, by removing references to an
``equivalent level of safety to that provided by [ship or aircraft]
hazard areas implemented for launch from a Federal range'' and
replacing them with a numeric limit on the probability of impact with
debris capable of causing a casualty.
Orbital Sciences recommended that no change be made to the hazard
area regulations. Orbital Sciences stated that the proposal to
implement a specific risk standard, even if it is quantitatively the
same as the Federal launch ranges' standard, creates the possibility
that the Federal launch ranges will change their standard and the FAA's
regulation will become obsolete. The FAA disagrees with Orbital
Sciences' recommendation. Regardless of whether the Federal
[[Page 47022]]
launch ranges change their risk criteria for ships and aircraft, the
Administrative Procedure Act, with limited exceptions, prohibits the
FAA from changing its regulatory requirements without notice and
comment. 5 U.S.C. 553. Therefore, even if the FAA maintained these
provisions using a purportedly outdated standard, a change to the
Federal launch range requirements would not automatically flow through
to FAA regulations, and licensed launch operators would have to abide
by the Federal launch range standard in effect when the FAA first
promulgated the regulation. Accordingly, if the Federal launch ranges
change their standard, the FAA will have to initiate its own rulemaking
in order to harmonize its water-borne vessel and aircraft hazard areas
limits with the Federal launch ranges'. To prevent this confusion, the
FAA is revising Sec. 417.107(b)(3) and (4) to identify the numeric
requirements.
An individual commenter questioned the proposed clarifications
regarding the ship and aircraft hazard areas. Specifically, the
individual commenter pointed out that the proposal, which is based on
the probability of impact with debris capable of causing a casualty,
could be either excessively conservative or non-conservative depending
on the details of the analysis, such as the threshold characteristics
of the debris and the size of the area considered vulnerable to such
debris impact. ACTA provided similar comments, stating the regulations
(1) do ``not define the area for computing impact'' with a vessel or
aircraft, and (2) do not clarify that operators must account for ``the
near-field explosive effects of propellants impacting in the vicinity
of [a] ship.''
The individual commenter's recommendation to substantively amend
the hazard area risk standards is outside the scope of this rulemaking.
As described in the 2014 NPRM, this final rule does not substantively
change the hazard area risk standards. 79 FR 42241, 42249-50. The
hazard area revisions only clarify the FAA's standards by using a
specific number, rather than an unquantified reference to Federal
launch range standards. The FAA therefore rejects the commenter's
recommendations to make substantive changes to the rule.
ACTA's comments also included numerous additional observations
related to the hazard area regulations. ACTA stated that the
regulations do not ``specify how (or even if) hazard areas are to be
used to implement mitigation'' to protect specific individuals or the
general public. This observation, however, ignores other sections of
the regulations that do address how hazard areas are to be used to
implement mitigation techniques, such as issuing public warnings and
performing surveillance. To meet the public risk criteria of Sec.
417.111(b), Sec. 417.223 requires ``a flight hazard area analysis that
identifies any regions of land, sea, or air that must be surveyed,
publicized, controlled, or evacuated in order to control the risk to
the public from debris impact hazards.'' Furthermore, Sec. 417.111(j)
requires a launch operator to ``implement a plan that defines the
process for ensuring that any unauthorized persons, ships, trains,
aircraft or other vehicles are not within any hazard areas identified
by the flight safety analysis or the ground safety analysis,'' and
explicitly includes hazard areas identified under Sec. Sec. 417.107
and 417.223.
ACTA also criticized the proposal for failing to justify ``why the
acceptable risk limit to the general public on ships is higher than for
people on land.'' The premise of this comment is not correct.
Specifically, Sec. 417.107(b)(2) provides that a launch operator may
initiate flight only if the risk to any individual member of the public
does not exceed a 1 x 10-6 probability of casualty,
regardless of the location of that individual member of the public.
Thus, the FAA's risk criteria provide equal protection to each
individual member of the public, on ships or on land. Moreover, to the
extent ACTA is criticizing the water-borne vessel hazard areas
requirement, the FAA is not changing the water-borne vessel hazard area
requirement; it is merely clarifying the requirement by removing a
reference to where the requirement can be found and replacing it with
the actual requirement.
ACTA also was concerned that the criteria for ship and aircraft do
not explicitly exclude ``mission-support vessels and aircraft,''
creating an inconsistency with the remainder of the regulation.
Although ACTA is correct that the criteria do not apply to vessels and
aircraft that support the launch, the FAA's launch and reentry
regulations address only public safety, which Sec. 401.5 defines as
``for a particular licensed launch, the safety of people and property
that are not involved in supporting the launch . . .'' It, therefore,
is unnecessary to explicitly exclude ``mission-support vessels and
aircraft'' from the public safety criteria for launch.
Finally, ACTA recommended that Sec. 417.107(b)(3) and (4) state
that ``a launch operator must make reasonable effort to ensure that the
probability of casualty to members of the public on water borne vessels
or in aircraft does not exceed the limit specified in [Sec.
417.107(b)(2)].'' ACTA stated that this revision would establish a
``specific risk value'' while at the same time giving operators
flexibility as to ``the method of protection'' or risk mitigation. The
regulations already allow a launch operator to employ different methods
of mitigating risk so the FAA will not adopt ACTA's proposal.
E. Including Toxic Release in the Reentry Risk Analysis
The FAA proposed to include the risks associated with toxic release
in the Ec limitations for the reentry of an RLV or other
reentry vehicle. Blue Origin opposed the proposal to include toxic
release in the reentry risk calculation. Blue Origin, quoting from the
regulatory evaluation in the 2014 NPRM, stated that ``toxic release
risks for reentry vehicles are `expected to remain a minor factor in
Ec calculations,' because most of the propellant will have
been used during the mission . . .'' The FAA is revising its position,
and disagrees with Blue Origin's assertion, because the FAA is aware of
plans that involve the return to land with a significant hypergolic,
highly toxic, propellant load carried until touchdown. The FAA
therefore continues to include toxic release in the reentry risk
analysis at this time.
F. Miscellaneous
Sierra Nevada recommended that the FAA define orbital insertion to
help ``reduce misinterpretation of the regulations'' because
``[s]etting a specific boundary would allow commercial space companies
to clearly understand the boundaries for expected casualty limits.''
The FAA agrees with Sierra Nevada's comments that Sec.
417.107(b)(1) can be amended to prevent potential
misinterpretation.\18\ The FAA takes this opportunity to clarify that
risk associated with planned impacts after orbital insertion should not
be included in an Ec analysis governed by Sec. 417.107.
Accordingly, to minimize confusion, the FAA is removing the phrase
``including each planned impact'' from Sec. 417.107(b)(1) to state
only that the operator account for risk through orbital insertion. The
risk assessment conducted under Sec. 417.107(b)(1) must
[[Page 47023]]
only include impacts through--meaning up to and including--the moment
of orbital insertion. More specifically, Ec encompasses
risks associated with planned events occurring from launch through the
moment of orbital insertion, but not the risks associated with on-orbit
activities. For example, the Sec. 417.107 risk analysis must include
the planned impact of a first stage jettisoned prior to orbital
insertion regardless of whether the actual impact of the first stage
occurs before or after orbital insertion.\19\ This is true whether the
first stage makes a controlled or uncontrolled impact. In contrast, the
Sec. 417.107 risk analysis does not require accounting for the planned
impact of an upper stage jettisoned after the vehicle has achieved
orbital insertion.
---------------------------------------------------------------------------
\18\ The FAA notes that its 2014 waiver for the Orion
Exploration Test Flight 1, which authorized an Ec of up
to 218 x 10-6, improperly accounted for public risks
outside the scope of Sec. 417.107(b)(1) by considering public risk
associated with planned impacts after orbital insertion in the
Ec calculation. Notice of Waiver, Mar. 10, 2014 (79 FR
13375); Notice of Amended Waiver, Dec. 5, 2014, (79 FR 72240).
\19\ For example, the return to Earth and successful landing of
the first stage of SpaceX's Falcon 9 launch vehicle was considered
part of launch and was accounted for in the calculation of launch
risk.
---------------------------------------------------------------------------
An individual commenter observed that the 2014 NPRM proposed to
revise the Ec requirements in parts 417, 431, and 435, but
neglected to revise the corresponding Ec requirements in
part 420, License to Operate a Launch Site. This was an oversight. This
final rule revises Sec. Sec. 420.19(a)(1); 420.23(a)(2), (b)(3), and
(c)(1)(ii); 420.25(b); 431.43(d)(2); paragraph (d) of Appendix C to
part 420; and paragraphs (a)(5), (e)(2), and (e)(3) of Appendix D to
part 420 to account for the Ec revisions made throughout
chapter III of title 14 of the Code of Federal Regulations.
Previously, Sec. 417.107(b)(2) referenced Ec when
describing the risk limit to any individual member of the public. This
reference may cause confusion because Ec is a measure of
collective risk to public safety, not individual risk. To prevent any
potential confusion, this final rule makes a non-substantive change to
Sec. 417.107(b)(2) to remove the reference to Ec.
The FAA is streamlining the terminology in the collective risk
requirements. Specifically, we are removing the colloquial term
``average'' from ``expected average,'' which is redundant and
unnecessary. In statistics there are three measures of central tendency
or ``averages'': The median, mode, and mean. The expected value is
synonymous with the mean value specifically, thus the term ``expected''
is technically precise and sufficient.
G. Differences Between the 2014 NPRM and the Final Rule
As described above, there are two differences between the FAA's
proposal in the 2014 NPRM and this final rule as adopted. These changes
include: (1) removing the phrase ``including each planned impact'' from
Sec. 417.107(b)(1) and (2) revising part 420 to account for revisions
to the Ec standard in parts 417, 431, and 435.
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall propose or adopt a regulation only upon
a reasoned determination that the benefits of the intended regulation
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) requires agencies to prepare a written assessment of
the costs, benefits, and other effects of final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this final rule.
In conducting these analyses, the FAA has determined that this
final rule: (1) Has net benefits that justify the costs; (2) is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; (3) is not ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (4) will not have a
significant economic impact on a substantial number of small entities;
(5) will not create unnecessary obstacles to the foreign commerce of
the United States; and (6) will not impose an unfunded mandate on
state, local, or tribal governments, or other private sectors by
exceeding the threshold identified above.
Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a final rule does not
warrant a full evaluation, this order permits that a statement to that
effect and the basis for it to be included in the preamble if a full
regulatory evaluation of the cost and benefits is not prepared. Such a
determination has been made for this final rule. Based on the facts and
methodology explained for the NPRM, the FAA provided cost-savings
estimates for the proposed rule and requested comments. The FAA did not
receive any comments on the estimates and thus the FAA follows the same
approach herein. These analyses are summarized below.
Parties Potentially Affected by This Rulemaking
Satellite owners
License applicants for launches and reentries
Commercial space transportation suppliers
The Federal Aviation Administration and the general public
Principal Assumptions and Sources of Information
Benefit-Cost Analysis for the collective risk limits during
launches and reentries (GRA study 2013 \20\ by GRA, Incorporated)
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\20\ GRA study can be found in the docket.
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FAA Office of Commercial Space Transportation forecast of
suborbital launches using subject experts' judgments
All monetary values are expressed in 2014 dollars
Projected impacts for a 10-year period from 2016 to 2025
Cost-Benefit Analysis
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14
CFR parts 417, 431, and 435 by changing the collective risk limits for
launches and reentries and clarifying the risk limit used to establish
hazard areas for ships and aircraft. The NPRM was published in the
Federal Register on July 21, 2014 (79 FR 42241).
Prior to this final rule, the FAA prohibited the expected casualty
(Ec) for each physically distinct source of risk (impacting
inert and explosive debris, toxic release and far field blast
overpressure) from exceeding 30 x 10-6 or an expected
average number of 0.00003 casualties per launch. The aggregate
Ec equals the sum of these risks, i.e., (30 x
10-6) + (30 x 10-6) + (30 x 10-6), for
a total of 90 x 10-6. However, launches were not subject
only to this single aggregate Ec limit. If there was a
reentry using a reentry vehicle, an additional regulatory provision
became applicable that prohibited the combined Ec of the
launch and reentry from exceeding 30 x
[[Page 47024]]
10-6 for vehicle or vehicle debris impact hazards.\21\
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\21\ This limit is specified in 14 CFR 431.35, which applies
only to reusable launch vehicles. However, 14 CFR 435.35
incorporates and applies 14 CFR 431.35 to all reentry vehicles.
---------------------------------------------------------------------------
Under this final rule, the FAA separates its expected casualties
(Ec) for launches and reentries. The final rule adopts an
aggregate Ec requirement for a launch not to exceed 1 x
10-4 posed by the following hazards: (1) Impacting inert and
explosive debris, (2) toxic release, and (3) far field blast
overpressure. The FAA also finalizes a separate aggregate Ec
requirement for a reentry not to exceed 1 x 10-4 posed by
the hazards of debris and toxic release.
An Ec value of 1 xx 10-4 mathematically
equals 100 x 10-6, which is the Ec value
currently used on federal ranges for civil and military launch and
reentry missions. However, because the aggregate Ec limit
uses only one significant digit in the format of 1 x 10-4,
this final rule, in practice, allows a commercial launch or reentry
with an aggregate Ec limit up to 149 x 10-6 to
proceed without requiring the applicant to seek an FAA waiver.
Based on analysis of the historical data, the FAA found the
criteria are supported by the commercial mission experiences and post-
mission safety data available since 1989. The FAA's launch data
indicate during this time there were 45 suborbital launches and 193
orbital launches, for a total of 238 launches.\22\ At least four of
these launches used an Ec that was allowed to go above the
existing 30 x 10-6 Ec limits. None of those four
launches resulted in any casualties or other adverse impacts on the
public safety.
---------------------------------------------------------------------------
\22\ AST/FAA launch data as of Feb 1, 2013, excluding 21 failed
launches. This data can be found at https://www.faa.gov/about/office_org/headquarters_offices/ast/launch_license. See also
Appendix A in GRA study, which can be found on the docket for this
rule.
---------------------------------------------------------------------------
As discussed in the preamble above, the FAA believes managing the
precision of rounding digits below and above the Ec limit
(i.e., 1 x 10-4) is unrealistic and unnecessary for
administering launch or reentry licenses. By using only one significant
digit, the Ec limit for launches become less restrictive
than the three existing launch Ec limits combined (i.e., 90
x 10-6). The regulatory-compliance difference between 90 x
10-6 and 149 x 10-6 falls under the accepted FAA
commercial launch safety margin because the level of imprecision
associated with Ec calculations means that there is no
substantive difference between these two Ec figures.
However, changing the regulations to use only one significant digit
will improve efficiency to license applicants in the launch approval
process. In addition, using a single Ec limit that applies
to an aggregate risk in place of three separate hazard-specific
Ec limitations will further increase efficiency. As a
result, the FAA believes the final rule maintains a level of safety for
commercial launches commensurate with the current level of safety
associated with civil and military counterparts, but will be cost-
relieving by eliminating some waiver processes necessary prior to this
rule.
The criteria also separately address the public risk limits of
toxic release and inert and explosive debris risks for reentry
operations by establishing public safety requirements similar to
current practice. Based on past practices of administering reentry
licenses, the FAA found it was unrealistic and unnecessary to
administer reentry licenses with a strict Ec limit of 30 x
10-6 for the combination of launch and reentry debris
hazards. Aggregating Ec limits of toxic release and inert
and explosive debris risks, the Ec limit for reentry will be
commensurate with the safety requirements applied to civil and military
reentries, and more conservative than past federal ranges' practices
that gave waivers to allow non-commercial reentry missions to proceed
with Ec risks on the order of 1 x 10-3.
The final rule revises reentry Ec limits for toxic
release and inert and explosive debris risks to be close to the current
FAA reentry licensing practice, on which we assess the current economic
baseline of the revised Ec limits. The FAA expects that the
nominal increase in the debris Ec limit on reentry in this
rule will impose no or minimal societal costs. This is because the FAA
has historically issued a number of waivers to commercial launches that
allowed those launches to exceed the regulatory Ec limits as long as
those launches did not exceed the 100 x 10-6 Ec
limits imposed by the federal ranges. The FAA has issued waivers to
commercial reentries that allowed the Ec for those reentries
to be considered separately from the Ec for launch. While
the FAA, as part of its waiver process, has not yet had to consider
whether a reentry operation should be issued a waiver to exceed the 30
x 10-6 Ec limit on reentry, the FAA expects that
its launch waiver analysis will apply equally to future reentry
operations. Consequently, the FAA anticipates that many of the future
reentry operations would be eligible for an FAA waiver in the absence
of this rule. Therefore, this rule will eliminate extra expenses of
processing such waivers.
The FAA finalizes the NPRM's proposal to include the risks
associated with toxic release in the Ec limitations for the
reentry of a reentry vehicle. By including toxic release risks during a
reentry operation, the final rule provides an incremental margin of
safety to the public that did not exist prior to this final rule.
The propellant load for a reentry vehicle using parachutes to land
is generally minimal because most of the propellant will have been used
before landing. The Ec risk for reentry vehicles landing in
the ocean will likely be below the collective Ec limit.
Toxic release risks for reentry will remain a minor factor in
Ec calculations until a licensee plans to land a reentry
vehicle on the ground, under power, using highly toxic hypergolic
propellants carried all the way to touchdown. Currently, toxic release
risk during launch generally exceeds an Ec of 1 x
10-4 when a reentry vehicle with hypergolic propellants on
board has to separate from its launch vehicle during an abort-to-orbit,
forcing an unplanned landing on land. Hence, a reentry vehicle planning
to land on the ground in such an abort-to-orbit scenario will not get a
government launch license under current U.S. Air Force regulations. The
FAA has not received applications for reentry vehicles that are capable
of landing on land without substantial risks of releasing hypergolic
propellants, although the FAA learned through conversations with the
U.S. Air Force that the industry is in the early planning stage of
developing this type of vehicle. However, if a reentry risk analysis
found the reentry vehicle imposed a substantial toxic release risk to a
launch site or outside of the hazard area, the reentry operator is
required under proposed regulation to choose an alternative landing
site to ensure any potential toxic release does not exceed the
collective Ec of 1 x 10-4. Because operators were
required to do a reentry risk analysis prior to this final rule, there
will be no additional compliance costs resulting from this final rule.
The necessary reentry risk analysis required for toxics only by this
final rule can be done within 3 weeks of time by 1.5 analysts being
paid at $35 per hour for the total of $6,300 per study. The FAA
considers this analysis cost to be minimal.
The changes in the risk limits apply to all three hazards combined
rather than to each individual hazard. This final rule permits launch
or reentry operations without requiring operators to seek FAA waivers
as long as the
[[Page 47025]]
aggregated risks will not exceed 0.0001 expected casualties per launch
or reentry mission (i.e., 1 x 10-4). Both the commercial
space transportation industry and the government will receive savings
attributable to less paperwork by avoiding some waiver-application
process expenses.
Based on historical records of requests and FAA-issued waivers from
the previous Ec limits, the FAA estimates that launch
operators would seek additional 38 waivers from 2016 to 2025 in the
absence of this rule.\23\ After the promulgation of this final rule,
the FAA expects these 38 waivers will not be needed. Thus, this final
rule will result in savings for both the industry and the FAA, as the
industry does not have to expend resources to request waivers and the
FAA will not have to expend resources to evaluate waiver requests.
---------------------------------------------------------------------------
\23\ GRA Study 2013, Table 5-7.
---------------------------------------------------------------------------
The methodology of this final regulatory impact analysis (RIA)
mirrors the RIA associated with the NPRM. The cost of a formal waiver
request to industry ranges from $137,097 for 1,717 hours to $195,094
for 2,443 hours of aerospace engineering time to prepare and submit the
necessary documentation to the FAA for approval.\24\ Multiplying the
forecasted 38 waivers for the 10-year period by the lower and upper
bound costs yields cost savings ranging from $5.2 million to $7.4
million. The estimates for the FAA's cost savings are based on the
costs of FAA personnel time ranging from $81,231 for 1,040 hours to
$243,693 for 3,120 hours \25\ to process each waiver request. This
range is related to the characteristics of the individual launch or
reentry request. Multiplied by the forecasted 38 waivers granted, the
total estimated savings of FAA personnel time to review requests and
issue waivers range from $3.1 million to $9.3 million. The resulting
savings for both the industry and the FAA with an estimated mid-point
will be approximately $12.5 million ($8.8 million present value at a 7%
discount rate). The lower and the higher estimates are approximately
$8.3 million and $16.7 million ($5.8 million and $11.7 million present
value at a 7% discount rate), respectively.
---------------------------------------------------------------------------
\24\ Basis is provided in GRA Study 2013, Appendix C, Table C-3.
\25\ GRA Study 2013, Appendix C, Tables C-1 and C-2 for the
basis of this value.
---------------------------------------------------------------------------
The final rule may also result in cost-saving by reducing launch
delays and mission scrubs. The FAA currently does not have sufficient
data to quantify these savings, but believes the possible reduction of
launch delays and mission scrubs may increase the overall capacity of
the U.S. space transportation industry. Accordingly, the FAA sought
comments on cost-savings in the NPRM and did not receive comments on
the estimated benefits of reduced launch delays and mission scrubs.
Therefore, the FAA maintains the same benefit determination.
In summary, the final rule maintains safety levels for commercial
space transportation commensurate with the current requirements applied
to launches and reentries. In addition, the final rule will result in
net benefits for both industry and government. The net benefit will be
achieved by avoiding costs pertaining to applying and granting waivers
with Ec limits between 90 x 10-6 and 149 x
10-6. Further, related industries may also benefit by
averting unnecessary mission delays and scrubs.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required.
The FAA expects many small entities will benefit from this final
rule because the regulatory revisions to the collective Ec
limits are cost-relieving. The FAA solicited comments in the NPRM and
did not receive comments with regard to this certification. Therefore,
the FAA Administrator certifies that this rule does not have a
significant economic impact on a substantial number of small entities.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA
assesses the potential effect of this final rule and thus determines
that the rule does not impose obstacles to foreign commerce, as foreign
exporters do not have to change their current export products to the
United States.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a final rule that may
result in an expenditure of $100 million or more (in 1995 dollars) in
any one year by State, local, and tribal governments, in the aggregate,
or by the private sector; such a mandate is deemed to be a
``significant regulatory action.'' The FAA currently uses an inflation-
adjusted value of $155 million in lieu of $100 million. This final rule
does not contain such a mandate; therefore, the requirements of Title
II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new requirement for information collection associated with
this final rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation
[[Page 47026]]
Organization (ICAO) Standards and Recommended Practices to the maximum
extent practicable. The FAA has determined that there are no ICAO
Standards and Recommended Practices that correspond to these proposed
regulations.
V. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency determined
that this action will not have a substantial direct effect on the
States, or the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, does not have Federalism
implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under the executive order and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
VI. How To Obtain Additional Information
A. Rulemaking Documents
An electronic copy of a rulemaking document my be obtained by using
the Internet--
1. Search the Federal eRulemaking Portal (https://www.regulations.gov);
2. Visit the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies/ or
3. Access the Government Publishing Office's Web page at https://www.gpo.gov/fdsys/.
Copies may also be obtained by sending a request (identified by
notice, amendment, or docket number of this rulemaking) to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
B. Comments Submitted to the Docket
Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the
docket number for this action. Anyone is able to search the electronic
form of all comments received into any of the FAA's dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
C. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document, may contact its local FAA official, or the person listed
under the FOR FURTHER INFORMATION CONTACT heading at the beginning of
the preamble. To find out more about SBREFA on the Internet, visit
https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects
14 CFR Part 417
Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.
14 CFR Part 420
Environmental protection, Launch safety, Reporting and
recordkeeping requirements, Space transportation and exploration.
14 CFR Parts 431 and 435
Launch and reentry safety, Aviation safety, Reporting and
recordkeeping requirements, Rockets, Space transportation and
exploration.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter III of title 14, Code of Federal
Regulations as follows:
PART 417--LAUNCH SAFETY
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1. The authority citation for part 417 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
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2. In Sec. 417.107, revise paragraphs (b)(1) through (4) to read as
follows:
Sec. 417.107 Flight safety.
* * * * *
(b) * * *
(1) A launch operator may initiate the flight of a launch vehicle
only if the total risk associated with the launch to all members of the
public, excluding persons in water-borne vessels and aircraft, does not
exceed an expected number of 1 x 10-4 casualties. The total
risk consists of risk posed by impacting inert and explosive debris,
toxic release, and far field blast overpressure. The FAA will determine
whether to approve public risk due to any other hazard associated with
the proposed flight of a launch vehicle on a case-by-case basis. The
Ec criterion applies to each launch from lift-off through
orbital insertion for an orbital launch, and through final impact for a
suborbital launch.
(2) A launch operator may initiate flight only if the risk to any
individual member of the public does not exceed a casualty expectation
of 1 x 10-6 per launch for each hazard.
(3) A launch operator must establish any water borne vessel hazard
areas necessary to ensure the probability of impact (Pi)
with debris capable of causing a casualty for water borne vessels does
not exceed 1 x 10-5.
(4) A launch operator must establish any aircraft hazard areas
necessary to ensure the probability of impact (Pi) with
debris capable of causing a casualty for aircraft does not exceed 1 x
10-6.
* * * * *
PART 420--LICENSE TO OPERATE A LAUNCH SITE
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3. The authority citation for part 420 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
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4. In Sec. 420.19, revise paragraph (a)(1) to read as follows:
Sec. 420.19 Launch site location review--general.
(a) * * *
(1) A safe launch must possess a risk level estimated, in
accordance with the requirements of this part, not to exceed an
expected number of 1 x 10-4 casualties (Ec) to
the collective members of the public exposed to hazards from the
flight.
* * * * *
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5. In Sec. 420.23, revise paragraphs (a)(2), (b)(3), and (c)(1)(ii) to
read as follows:
Sec. 420.23 Launch site location review--flight corridor.
(a) * * *
(2) Includes an overflight exclusion zone where the public risk
criteria of 1 x 10-4 would be exceeded if one person were
present in the open; and
* * * * *
(b) * * *
(3) Includes an overflight exclusion zone where the public risk
criteria of 1 x 10-4 would be exceeded if one person were
present in the open; and
* * * * *
(c) * * *
(1) * * *
(ii) An overflight exclusion zone where the public risk criteria of
1 x
[[Page 47027]]
10-4 would be exceeded if one person were present in the
open.
* * * * *
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6. In Sec. 420.25, revise paragraph (b) to read as follows:
Sec. 420.25 Launch site location review--risk analysis.
* * * * *
(b) For licensed launches, the FAA will not approve the location of
the proposed launch point if the estimated expected casualty exceeds 1
x 10-4.
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7. In Appendix C to part 420, revise paragraphs (a)(2) and (d)(1) and
(2) to read as follows:
Appendix C to Part 420--Risk Analysis
(a) * * *
(2) An applicant shall perform a risk analysis when a populated
area is located within a flight corridor defined by either appendix
A or appendix B. If the estimated expected casualty exceeds 1 x
10-4, an applicant may either modify its proposal, or if
the flight corridor used was generated by the appendix A method, use
the appendix B method to narrow the flight corridor and then redo
the overflight risk analysis pursuant to this appendix. If the
estimated expected casualty still exceeds 1 x 10-4, the
FAA will not approve the location of the proposed launch point.
* * * * *
(d) * * *
(1) If the estimated expected casualty does not exceed 1 x
10-4, the FAA will approve the launch site location.
(2) If the estimated expected casualty exceeds 1 x
10-4, then an applicant may either modify its proposal,
or, if the flight corridor used was generated by the appendix A
method, use the appendix B method to narrow the flight corridor and
then perform another appendix C risk analysis.
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8. In Appendix D to part 420, revise paragraphs (a)(5) and (e)(2) and
(3) to read as follows:
Appendix D to Part 420--Impact Dispersion Areas and Casualty Expectancy
Estimate for an Unguided Suborbital Launch Vehicle
(a) * * *
(5) If the estimated Ec is less than or equal to 1 x
10-4, the FAA will approve the launch point for unguided
suborbital launch vehicles. If the estimated Ec exceeds 1
x 10-4, the proposed launch point will fail the launch
site location review.
* * * * *
(e) * * *
(2) If the estimated expected casualty does not exceed 1 x
10-4, the FAA will approve the launch point.
(3) If the estimated expected casualty exceeds 1 x
10-4, then an applicant may modify its proposal and then
repeat the impact risk analysis in accordance with this appendix D.
If no set of impact dispersion areas exist which satisfy the FAA's
risk threshold, the applicant's proposed launch site will fail the
launch site location review.
PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
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9. The authority citation for part 431 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
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10. In Sec. 431.35, revise paragraph (b)(1) to read as follows:
Sec. 431.35 Acceptable reusable launch vehicle risk.
* * * * *
(b) * * *
(1) To obtain safety approval, an applicant must demonstrate the
following for public risk:
(i) The risk to the collective members of the public from the
proposed launch meets the public risk criteria of Sec. 417.107(b)(1)
of this chapter;
(ii) The risk level to the collective members of the public,
excluding persons in water-borne vessels and aircraft, from each
proposed reentry does not exceed an expected number of 1 x
10-4 casualties from impacting inert and explosive debris
and toxic release associated with the reentry; and
(iii) The risk level to an individual does not exceed 1 x
10-6 probability of casualty per mission.
* * * * *
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11. In Sec. 431.43, revise paragraph (d)(2) to read as follows:
* * * * *
(d) * * *
(2) The expected number of casualties to members of the public does
not exceed 1 x 10-4 given a probability of vehicle failure
equal to 1 (pf=1) at any time the IIP is over a populated area;
* * * * *
PART 435-- REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE
LAUNCH VEHICLE (RLV)
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12. The authority citation for part 435 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
13. Revise Sec. 435.35 to read as follows:
Sec. 435.35 Acceptable reusable launch vehicle risk.
To obtain safety approval for reentry, an applicant must
demonstrate the following for public risk:
(a) The risk to the collective members of the public from the
proposed launch meets the public risk criteria of Sec. 417.107(b)(1)
of this chapter;
(b) The risk level to the collective members of the public,
excluding persons in water-borne vessels and aircraft, from each
proposed reentry does not exceed an expected number of 1 x
10-4 casualties from impacting inert and explosive debris
and toxic release associated with the reentry; and
(c) The risk level to an individual does not exceed 1 x
10-6 probability of casualty per mission.
Issued under authority provided by 49 U.S.C. 106(f), and 51
U.S.C. 50903, 50905 in Washington, DC, on July 11, 2016.
Michael P. Huerta,
Administrator.
[FR Doc. 2016-17083 Filed 7-19-16; 8:45 am]
BILLING CODE 4910-13-P
