Statement of Policy on Waiving Ground Safety Regulations at Cape Canaveral Air Force Station, Vandenberg Air Force Base, Wallops Flight Facility, and Kennedy Space Center, 20625-20627 [2021-07353]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Rules and Regulations]
[Pages 20625-20627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07353]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 415, 417, 431, and 435


Statement of Policy on Waiving Ground Safety Regulations at Cape 
Canaveral Air Force Station, Vandenberg Air Force Base, Wallops Flight 
Facility, and Kennedy Space Center

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Policy statement.

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SUMMARY: This action establishes the FAA's policy applicable to waivers 
of FAA ground safety requirements for licensed commercial launch and 
reentry activities at certain Federal ranges. The Federal ranges that 
currently meet the criteria for application of this policy are: Cape 
Canaveral Air Force Station, Vandenberg Air Force Base, Wallops Flight 
Facility, and Kennedy Space Center.

DATES: The policy described herein was effective November 3, 2020.

FOR FURTHER INFORMATION CONTACT: For additional information concerning 
this action, contact Randy Repcheck, Acting Executive Director, Office 
of Operational Safety, via letter: 800 Independence Ave. SW, 
Washington, DC 20591; via email: [email protected]; via phone: 
202-267-7793.

SUPPLEMENTARY INFORMATION: The Commercial Space Launch Act of 1984, as 
amended and codified at 51 U.S.C. 50901-50923, authorizes the 
Department of Transportation, and the FAA through delegation, to 
oversee, license, and regulate commercial launch and reentry 
activities, and the operation of launch and reentry sites as carried 
out by U.S. citizens or within the United States. Section 50905(b)(3) 
allows the Secretary to waive a requirement, including the requirement 
to obtain a license, for an individual applicant if the Secretary 
decides that the waiver is in the public interest and will not 
jeopardize the public health and safety, safety of property, and 
national security and foreign policy interests of the United States.\1\ 
This policy statement provides public notice of the FAA's approach to 
evaluating waiver applications under 51 U.S.C. 50905(b)(3) with respect 
to ground safety requirements at Federal launch ranges. It does not 
have the force and effect of law and is not meant to bind the public in 
any way. It is intended only to provide clarity to the public regarding 
existing requirements under the law and agency policies.
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    \1\ The Secretary may not grant a waiver under this section that 
would permit the launch or reentry of a launch vehicle or a reentry 
vehicle without a license or permit if a human being will be on 
board.
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I. Background

    The FAA has worked in partnership for launch safety with the U.S. 
Air Force (AF) since 2001 and the National Aeronautics and Space 
Administration (NASA) since 2007. An objective of these interagency 
partnerships has been to maintain common safety standards and practices 
for launch across the Federal Government. These agencies formed the 
Common Standards Working Group (CSWG), which is tri-chaired by FAA, AF, 
and NASA. The CSWG is a forum to maintain common safety standards and 
practices between the agencies for both commercial and Government 
launch activities. The CSWG is comprised of range safety personnel from 
Cape Canaveral Air Force Station (CCAFS), Vandenberg Air Force Base 
(VAFB), Wallops Flight Facility (WFF), and Kennedy Space Center (KSC).
    In 2006, the FAA issued a final rule that established the launch 
site safety assessment (LSSA) process.\2\ The LSSA is an FAA assessment 
of a Federal launch range to determine if the range requirements and 
practices satisfy FAA safety regulations. Subpart C of 14 CFR part 415 
describes how the FAA reviews the safety of licensed launches from 
Federal launch ranges.
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    \2\ 71 FR 50508 (Aug. 25, 2006).
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    Subpart C recognizes that a launch operator may use an LSSA to 
demonstrate compliance with FAA safety requirements.\3\
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    \3\ 14 CFR 415.31(a).
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    The FAA has completed LSSAs for CCAFS, VAFB, WFF, and it is in the 
process of finalizing an LSSA for KSC. In the initial assessments for 
CCAFS, VAFB, and WFF, the FAA did not find any substantial differences 
between the requirements and practices of these Federal ranges and FAA 
regulations because 14 CFR part 417 was derived largely from existing 
Federal launch range safety requirements. Similarly, in developing the 
LSSA for KSC, the FAA likewise concluded that KSC's requirements and 
practices were not substantially different from FAA ground safety 
regulations. The FAA has maintained and updated the initial assessments 
for CCAFS, VAFB, and WFF to account for changes in processes at these 
Federal ranges and in FAA regulations. Where the range's requirement or 
practice did not meet FAA regulations, the FAA either made a 
determination that the range's requirement provides for an equivalent 
level of safety to the FAA's requirement, waived the FAA requirement, 
or required the operator to comply with the FAA requirement. In 
addition to the LSSA process, the FAA, through its participation in the 
CSWG, has gained significant insight into the ground safety 
requirements and practices for CCAFS, VAFB, WFF, and KSC.
    The 2015 Commercial Space Launch Competitiveness Act directed the 
Secretary of Transportation to consult with the Secretary of Defense, 
Administrator of NASA, and other agencies, as appropriate, to identify 
and evaluate requirements imposed on commercial space launch and 
reentry operators to protect the public health and safety, safety of 
property, national security interests, and foreign policy interests of 
the United States.\4\ It also directed the Secretary of Transportation 
to resolve any inconsistencies and remove any outmoded or duplicative

[[Page 20626]]

Federal requirements or approvals applicable to any commercial launch 
of a launch vehicle or commercial reentry of a reentry vehicle. The FAA 
has been working with AF and NASA to fulfill this mandate.
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    \4\ U.S. Commercial Space Launch Competitiveness Act, Public Law 
114-90, sec. 113(c)(1), 129 Stat. 704, 714 (2015).
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    In the John S. McCain National Defense Authorization Act for Fiscal 
Year 2019 (Pub. L. 115-232, Sec. 1606, 132 Stat. 2107), Congress 
directed that the Secretary of Defense may not impose any requirement 
on a licensee or transferee that is duplicative of, or overlaps in 
intent with, any requirement imposed by the Secretary of Transportation 
under Title 51.\5\
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    \5\ The Secretary of the Air Force may waive this limitation 
when necessary to avoid negative consequences for the national 
security space program after notifying the Secretary of 
Transportation.
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II. Discussion of the Policy

A. Ground Safety Under Part 417 for Expendable Launch Vehicles

    Section 415.31(a) states, in relevant part, that the FAA will issue 
a safety approval to a license applicant proposing to launch from a 
Federal launch range if the applicant has contracted with the Federal 
launch range for the provision of safety-related launch services and 
property, provided the LSSA shows that the range's launch services and 
launch property satisfy part 417.
    Subpart E of part 417 contains the FAA's public safety requirements 
that apply to ground safety at launch sites in the United States, 
including Federal launch ranges. Under Sec.  417.402(b), the FAA will 
accept a launch operator's proposed ground safety process for an 
expendable launch vehicle from a Federal launch range without further 
demonstration of compliance to the FAA if:
    (1) A launch operator has contracted with a Federal launch range 
for the provision of ground safety process; and
    (2) the FAA has assessed the Federal launch range through its 
launch site safety assessment and found that the Federal launch range's 
ground safety process satisfies the requirements of subpart E.
    In such cases, the FAA treats the Federal launch range's process as 
that of a launch operator.
    Generally, under subpart E, the FAA requires an operator to conduct 
a ground safety analysis for launch vehicle hardware, ground hardware 
including launch site and ground support equipment, launch processing, 
and post-launch operations. This analysis must identify each potential 
hazard, associated cause, and hazard control that a launch operator 
must establish and maintain to keep each identified hazard from 
affecting the public. An operator must identify and control hazards 
that extend beyond the launch location under the control of a launch 
operator, including hazards arising from associated payloads. These 
hazards include, but are not limited to, blast overpressure and 
fragmentation resulting from an explosion, fire and deflagration, 
sudden release of a hazardous material, and inadvertent ignition of a 
propulsive launch vehicle payload, stage, or motor. The FAA requires an 
operator to institute hazard controls, which may include safety clear 
zones, designated hazard areas, or other means of protecting the public 
from hazardous operations. In addition, an operator also has to 
identify and control launch location hazards, which are hazards that 
stay within the confines of the location under the control of a launch 
operator.
    It is against these subpart E requirements that the FAA assesses a 
Federal range's process to determine if the range's process satisfies 
FAA requirements. If it does not, the FAA addresses the difference by 
issuing equivalent level of safety determinations or waivers, or--if 
necessary--requiring compliance with the FAA's requirements.

B. Ground Safety Under Part 431 for Reusable Launch Vehicles

    Section 431.35(c) requires, in part, that an applicant demonstrate 
that the launch of a reusable launch vehicle complies with acceptable 
risk criteria by employing a system safety process to identify the 
hazards and assess the risks to public health and safety and the safety 
of property associated with the mission. The FAA requires this system 
safety process to identify and assess hazards associated with both 
licensed ground and flight activities. This system safety process must 
identify the same types of ground safety hazards and related ground 
safety hazard controls as detailed above with regard to part 417, 
subpart E; however, there is no formally prescribed LSSA process under 
part 431. Therefore, operators must meet all of the safety requirements 
in part 431, regardless of whether the FAA has completed an LSSA for 
the relevant Federal launch range or not.

C. Waiver

    As noted, Congress has directed Federal agencies involved in 
commercial launches to eliminate duplicative requirements. Accordingly, 
it is the FAA's policy to use its authority in 51 U.S.C. 50905(b)(3), 
as delegated by the Secretary, to waive ground safety requirements for 
launches conducted from certain Federal ranges, when appropriate, if an 
operator has contracted with the Federal range for the provision of the 
ground safety process. Specifically, the FAA generally will, upon the 
applicant's showing, waive the requirements in Sec. Sec.  415.31(a) and 
417.402(b) to the extent that those provisions require an LSSA to 
verify that a Federal range's ground safety process satisfies the 
requirements of subpart E of part 417. Additionally, the FAA generally 
will, upon the applicant's showing, grant a partial waiver of Sec.  
431.35(c) to the extent that section requires a system safety process 
for the ground portion of launch at these Federal ranges.\6\ Although 
the FAA sets forth this general policy for evaluating and issuing 
waivers, the FAA reserves its discretion to deny or withdraw a waiver 
if, under the particular circumstances, the FAA finds that it is not in 
the public interest or will jeopardize the public health and safety, 
safety of property, or national security and foreign policy interests 
of the United States.
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    \6\ This partial waiver of Sec.  431.35(c) also applies to 
applications for a reentry vehicle other than a reusable launch 
vehicle under part 435, consistent with Sec.  435.33. The section 
covers both ground safety and flight safety requirements. This 
waiver policy will extend only to the requirements for ground 
safety.
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    The FAA finds that this policy is in the public interest because it 
reduces duplicative requirements imposed by Federal authorities on 
commercial space operators. This policy responds to repeated 
Congressional direction to remove overlapping requirements. Removing 
duplicative Federal government requirements increases efficiency in 
launch application processing and approval for both Government and 
commercial stakeholders. Removing duplicative requirements will also 
result in a clear delineation of responsibility between Federal actors 
with regard to oversight over different portions of launch, which is 
expected to reduce confusion and improve safety of the public.
    The FAA further finds that this policy would not jeopardize public 
health and safety, safety of property, or the national security and 
foreign policy interests of the United States. This policy will apply 
only to Federal ranges: (1) With which the FAA has a long-term working 
relationship through the CSWG, and (2) that have a cadence of both 
commercial and government launches that facilitates highly-developed 
and well-understood processes and requirements. To date, those ranges 
include: CCAFS, VAFB,

[[Page 20627]]

WFF, and KSC. As mentioned previously, the FAA has been working with AF 
and NASA launch personnel through the CSWG since 2001 and 2007, 
respectively. The longevity of this working relationship has allowed 
for insight into the requirements and practices at these ranges 
sufficient to provide FAA confidence that these ranges will ensure 
public safety during ground operations. The FAA has found that these 
Federal ranges have processes, procedures, and requirements that 
account for hazards to public safety associated with launch vehicle 
hardware, ground hardware including launch site and ground support 
equipment, launch processing, and post-launch operations. Constant 
dialogue through the CSWG will keep the FAA updated on requirements and 
practices at these ranges and will allow the FAA to intervene if 
necessary. Furthermore, the cadence of launches has provided these 
Federal ranges with unparalleled experience with both commercial and 
government launches. This experience informs the requirements at these 
ranges and provides the FAA further confidence that the requirements 
and processes at these ranges satisfy the FAA's statutory mandate to 
protect the public. In summary, the FAA has found that satisfaction of 
the criteria above has established a level of confidence with regard to 
the ranges' ground safety processes, procedures, and requirements that 
it is an appropriate basis on which to waive these FAA requirements.
    Under this policy, the FAA will not continue to update LSSAs for 
ground safety for these launch sites; rather, the FAA will continue to 
work with AF and NASA through the CSWG to ensure consistency of 
requirements for ground safety at Federal and non-Federal launch 
ranges. The FAA retains its authority, however, to deny or withdraw any 
waiver, or to withdraw this policy, if it determines that public health 
and safety, safety of property, or national security and foreign policy 
interests of the United States would be jeopardized.

III. Determination of Maximum Probable Loss

    The FAA determines the maximum probable loss (MPL) from covered 
claims by a third party for bodily injury or property damage, and the 
United States, its agencies, and its contractors and subcontractors for 
covered property damage or loss, resulting from licensed activity. The 
MPL determination forms the basis for financial responsibility 
requirements issued in a license order. The FAA calculates the MPL 
taking into account the hazards associated with the licensed activity. 
The MPL amount for both the ground and flight portions of a licensed 
activity is detailed in the license orders.
    The FAA's process for determining MPL will not change as a result 
of this policy statement. The FAA will continue to calculate MPL for 
both ground and flight portions of launch at CCAFS, VAFB, WFF, and KSC. 
Furthermore, the FAA does not expect this policy to impact the MPL 
amounts for licensed activities at these Federal ranges.

IV. Implementation

    The FAA currently requires an applicant seeking to conduct a launch 
from a Federal range to show evidence of an agreement with the Federal 
range in its license application. 14 CFR 417.13(a). This agreement must 
provide for access to and use of property and services required to 
support a licensed launch from that facility.
    An applicant seeking a waiver consistent with this policy statement 
should include in its application the following:
    ``[INSERT COMPANY NAME] is seeking a waiver, consistent with the 
policy statement published at [INSERT FEDERAL REGISTER CITATION], to 
operate from [INSERT FEDERAL LAUNCH RANGE]. [INSERT COMPANY NAME] will 
utilize the ground safety processes and services at this location, and 
comply with any ground safety requirements imposed by the agreement 
dated [INSERT DATE OF AGREEMENT WITH FEDERAL RANGE].''
    The applicant should also provide the FAA its agreement with the 
Federal range in accordance with regulations.
    The contents of this document do not have the force and effect of 
law and are not meant to bind the public in any way. This document is 
intended only to provide clarity to the public regarding existing 
requirements under the law or clarify agency policies.

Wayne R. Monteith,
Associate Administrator for Commercial Space Transportation.
[FR Doc. 2021-07353 Filed 4-20-21; 8:45 am]
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