81 FR 47017 - Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships and Aircraft
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration Federal Register Volume 81, Issue 139 (July 20, 2016)
Federal Aviation Administration
Federal Register Volume 81, Issue 139 (July 20, 2016)
| Page Range | 47017-47027 | |
| FR Document | 2016-17083 |
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)] [Rules and Regulations] [Pages 47017-47027] From the Federal Register Online [www.thefederalregister.org] [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 [email protected]. 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 E c 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. --------------------------------------------------------------------------- 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 RulemakingSatellite 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) --------------------------------------------------------------------------- \20\ GRA study can be found in the docket. --------------------------------------------------------------------------- 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 (E c ) 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\ --------------------------------------------------------------------------- \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 http://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 (http://www.regulations.gov); 2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or 3. Access the Government Publishing Office's Web page at http://www.thefederalregister.org/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 http://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 http://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 0 1. The authority citation for part 417 continues to read as follows: Authority: 51 U.S.C. 50901-50923. 0 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 0 3. The authority citation for part 420 continues to read as follows: Authority: 51 U.S.C. 50901-50923. 0 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. * * * * * 0 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. * * * * * 0 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. 0 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. 0 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) 0 9. The authority citation for part 431 continues to read as follows: Authority: 51 U.S.C. 50901-50923. 0 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. * * * * * 0 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) 0 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
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■ 2. Amend Appendix G, Section 3 by telephone (202) 267–7538; email and reentry to more closely match the
removing and reserving paragraph Rene.Rey@faa.gov. Ec standard currently used by the
(b)(1). SUPPLEMENTARY INFORMATION: United States (U.S.) Air Force and the
Issued under authority provided by 49 National Aeronautics and Space
Authority for This Rulemaking Administration (NASA) for government
U.S.C. 106(f), 40103, 40113, and 44701(a) in
Washington, DC, on July 12, 2016. The Commercial Space Launch Act of missions, and to account for the level of
Michael Huerta, 1984, as amended and codified at 51 uncertainty that exists in the Ec
Administrator.
United States Code (U.S.C.) Subtitle V— calculations.
Commercial Space Transportation, Ch. This final rule also makes two
[FR Doc. 2016–17155 Filed 7–19–16; 8:45 am]
509, Commercial Space Launch revisions to § 417.107 to clarify the
BILLING CODE 4910–13–P
Activities, 51 U.S.C. 50901–50923 (the launch and reentry regulations. The first
Act), authorizes the Secretary of revision removes the phrase ‘‘including
Transportation and thus the FAA, each planned impact’’ from
DEPARTMENT OF TRANSPORTATION
through delegations, to oversee, license, § 417.107(b)(1) to clarify that public risk
Federal Aviation Administration and regulate commercial launch and is assessed from lift-off through orbital
reentry, and the operation of launch and insertion for orbital launches and from
14 CFR Parts 417, 420, 431, and 435 reentry sites as carried out by U.S. lift-off to final impact for suborbital
citizens or within the United States. 51 launches. The second revision modifies
[Docket No.: FAA–2014–0418; Amdt. Nos. U.S.C. 50904, 50905. The Act directs the § 417.107(b)(3) and (b)(4) to make
417–4, 420–7, 431–4 and 435–3] FAA to exercise this responsibility transparent the criteria for establishing
consistent with public health and safety, hazard areas by replacing the references
RIN 2120–AK06
safety of property, and the national to equivalent levels of safety for water
Changing the Collective Risk Limits for security and foreign policy interests of borne and aircraft hazard areas required
Launches and Reentries and Clarifying the United States. 51 U.S.C. 50905. for launch from a federal launch range
the Risk Limit Used To Establish Section 50901(a)(7), in relevant part, with the actual levels of safety provided
Hazard Areas for Ships and Aircraft directs the FAA to regulate private by hazard areas for launches from a
sector launches, reentries, and federal range in 2006, the year the FAA
AGENCY: Federal Aviation associated services only to the extent promulgated § 417.107. Under
Administration (FAA), DOT. necessary to protect the public health § 417.107(b)(3), a hazard area for water
ACTION: Final rule. and safety and safety of property. The borne vessels satisfies part 417 if the
FAA is also responsible for encouraging, probability of impact with debris
SUMMARY: The FAA is amending its facilitating, and promoting commercial capable of causing a casualty on any
regulations concerning the collective space launches and reentries by the potential water borne vessel within the
risk limits for commercial launches and private sector. 51 U.S.C. 50903. hazard area does not exceed 0.00001 (1
reentries. These changes include: × 10¥5). Under § 417.107(b)(4), a hazard
I. Overview of Final Rule
Separating the risk limits for area for aircraft will satisfy part 417 if
commercial launches and reentries; The FAA is adopting this final rule to the probability of impact with debris
aggregating the risk posed by impacting revise certain regulations related to the capable of causing a casualty on any
inert and explosive debris, toxic release, collective risk limits for commercial potential aircraft within that hazard area
and far field blast overpressure; limiting launches and reentries in part 417 does not exceed 0.000001 (1 × 10¥6).
the aggregate risk for these three hazards (Launch Safety), part 420 (License to These clarifying edits do not change the
to 1 × 10¥4; reducing the number of Operate a Launch Site), part 431 risk requirement for launch licensees or
significant digits used in launch and (Launch and Reentry of a Reusable launch license applicants.
reentry risk analysis; and various non- Launch Vehicle (RLV)), and part 435
(Reentry of a Reentry Vehicle Other Summary of the Costs and Benefits of
substantive clarifying revisions. These
Than a Reusable Launch Vehicle (RLV)) the Final Rule
changes update FAA regulations to
reflect the United States Government’s of Title 14 of the Code of Federal The final rule will result in net
greater experience with commercial Regulations (14 CFR). benefits for both the commercial space
launch and reentry and to align more This final rule divides the risk transportation industry (industry) and
closely the FAA’s risk standards with analysis for launch and reentry, government by reducing the number of
those of other United States Federal providing a separate risk budget for waivers that must be prepared by the
agencies, while continuing to protect each. For all launches, regardless of industry and processed by the
public safety. vehicle type, this final rule requires a government for launches with an
DATES: Effective September 19, 2016.
single expected number of casualties aggregate Ec between 90 × 10¥6 and 149
(Ec) be calculated by aggregating the risk × 10¥6, and by averting unnecessary
ADDRESSES: For information on where to posed to the collective members of the mission delays and scrubs. The
obtain copies of rulemaking documents public from three hazards: Impacting resulting savings for both the industry
and other information related to this and inert explosive debris, toxic release, and the FAA from reducing the number
final rule, see ‘‘How To Obtain and far field blast overpressure. This of waivers range from a low estimate of
Additional Information’’ in the final rule also revises the acceptable risk approximately $8.3 million to a high
SUPPLEMENTARY INFORMATION section of threshold for launch from an Ec of 30 × estimate of $16.7 million ($5.8 million
this document. 10¥6 for each hazard to an Ec of 1 × and $11.7 million present value at a 7%
FOR FURTHER INFORMATION CONTACT: For 10¥4 for all three hazards combined.
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discount rate, respectively).
technical questions concerning this Furthermore, this final rule expresses
action, contact Rene Rey, AST–300, the revised Ec limit using the correct II. Background
Office of Commercial Space number of significant digits to properly An operator conducts a launch using
Transportation, Federal Aviation represent the uncertainty in Ec an expendable launch vehicle (ELV) or
Administration, 800 Independence calculations. This final rule changes the a reusable launch vehicle (RLV). An
Avenue SW., Washington, DC 20591; FAA’s collective risk limits for launch ELV is a launch vehicle whose
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propulsive stages are flown only once. far field blast overpressure. In addition, Aerospace (XCOR), and two individual
14 CFR 401.5. An RLV is a launch in 2010 NASA also revised its risk commenters. Most of the commenters
vehicle that is designed to return to acceptability policy to limit the Ec from supported the proposed changes, and
Earth substantially intact and, therefore, launch and reentry missions to 100 × some suggested additional changes that
may be launched more than one time or 10¥6 each. are discussed more fully below. Several
that contains vehicle stages that may be Because the FAA’s collective risk commenters fully supported the
recovered by a launch operator for regulations were based on the U.S. Air proposed changes, and one commenter
future use in the operation of a Force’s former 30 × 10¥6 limit—a limit opposed the proposed changes. The
substantially similar launch vehicle. Id. that both the U.S. Air Force and NASA, comments focused on the following
Reentry is conducted with RLVs or after considerable experience, have now general areas of the proposal:
other reentry vehicles. A reentry vehicle revised—the FAA questioned in the • Individual risk limits
is a vehicle designed to return from 2014 NPRM whether its collective risk • Separation of launch and reentry
Earth orbit or outer space to Earth limits, revised by this final rule, • Significant figures
substantially intact, and includes a continued to represent appropriate • Ship and aircraft hazard areas
reentering RLV. Id. public risk criteria for commercial ELV • Including toxic release in the reentry
Parts 417, 420, 431, and 435 and RLV operations. In addition, the risk analysis
(collectively, the collective risk FAA’s own experience led the agency to III. Discussion of Public Comments and
regulations) limit the collective risk that question whether those Ec limits created Final Rule
a commercial launch or reentry may an obstacle to NASA’s implementation
pose to the public. The FAA’s collective of the National Space Policy (e.g., NASA A. Individual Risk
risk regulations, as originally proposed commercial flights to the As discussed in the 2014 NPRM, this
promulgated, were based primarily on International Space Station that would final rule does not substantively revise
Ec limits that the U.S. Air Force not meet FAA’s current Ec limits).3 the FAA’s limitation on risk posed to
imposed on launches from federal Finally, the FAA also sought to individuals found in §§ 417.107, 431.35,
launch ranges at the time the FAA began address in the 2014 NPRM whether its and 435.35.4 The individual risk limits
establishing its own Ec limits.1 In former collective risk regulations in § 417.107(b)(2) prohibit launch risk to
addition to imposing Ec limits on risk sufficiently distinguished between an individual from exceeding 1 × 10¥6
posed by launches and reentries to commercial launch and reentry risk. for each hazard (debris, toxic release,
collective members of the public, these Instead of regulating risk based on and far field blast overpressure) for
regulations also impose separate limits whether the operation in question was launch of an ELV. For the launch of a
on the risk posed by these operations to a launch or a reentry, the former RLV or other reentry vehicle,
individual members of the public. collective risk regulations focused on §§ 431.35(b)(1)(ii) and 435.35 continue
In July 2014, the FAA published in the type of vehicle used in the to prohibit the risk to an individual
the Federal Register a notice of operation, namely whether the vehicle from exceeding 1 × 10¥6 per mission.
proposed rulemaking (2014 NPRM) was an ELV, RLV, or a reentry vehicle. The FAA proposed no change to this
proposing various revisions to the B. Summary of the 2014 NPRM risk limit, so any change now would be
FAA’s launch and reentry regulations.2 outside the scope of the proposal.
This final rule adopts the proposal The 2014 NPRM proposed several
Nonetheless, the comments raise issues
outlined in the 2014 NPRM, with minor revisions to the FAA’s risk framework.
of interest and are addressed below.
These proposals included: Aggregating XCOR agreed that no change is
modifications and clarifications in
launch hazards and establishing an Ec necessary because it is easier for launch
response to comments from the public.
limit of 1 × 10¥4, thus reducing the operators to mitigate risk to a particular
A. Statement of the Problem number of significant digits in a launch
individual than the collective public,
Prior to the 2014 NPRM, or reentry risk analysis; separating the
and because the FAA has never waived
developments in the industry and risk limits for the launch and reentry of
individual risk for launches in the past.
among U.S. Government agencies led a reentry vehicle; including toxic release
On the other hand, Orbital Sciences
the FAA to question its collective risk as a hazard in the risk analysis for
recommended that the FAA ‘‘[e]xamine
regulations. In 2010, the U.S. Air Force, reentries; and clarifying the acceptable
historical data for all U.S. launches to
after conducting over 5,000 launches risk threshold for impact with ships and
determine the highest level of risk
under a 30 × 10¥6 Ec limit, determined aircraft in hazard areas. For more
realized by any individual member of
that it could increase its Ec limit from detailed information, interested parties
the public and propose a more realistic
30 × 10¥6 per hazard to 100 × 10¥6 for may consult the preamble of the 2014
NPRM. . . . risk [figure] based on this
the aggregate public risk associated with successful precedent.’’ Orbital Sciences
debris, toxicity, and far field blast C. General Overview of Comments also recommended that the FAA adopt
overpressure without harming public The comment period for the July 2014 ‘‘identical risk limits for individual
safety. The U.S. Air Force’s new Ec NPRM closed on October 20, 2014. The members of the public’’ for U.S.
standards also apply a separate Ec limit FAA received comments from nine Government and commercial launches.
to reentry, limiting reentry Ec to 100 × commenters, including ACTA Inc. The FAA disagrees with Orbital
10¥6 for the aggregate public risk (ACTA), Blue Origin, LLC (Blue Origin), Sciences’ recommendation to revise the
associated with all hazards, which Lockheed Martin Corporation (Lockheed individual risk threshold. Unlike the
typically include debris, toxicity, and Martin), Orbital Sciences Corporation FAA’s collective risk limitation, the
(Orbital Sciences), Sierra Nevada Corp. FAA is aware of only a small number of
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1 See, e.g., Commercial Space Transportation
(Sierra Nevada), Space Exploration historical U.S. government launches for
Licensing Regulations, Final Rule (Launch
Licensing Rule), 64 FR 19586, 19605 n.11 (Apr. 21, Technologies Corp. (SpaceX), XCOR which the predicted individual risk for
1999). any one member of the public exceeded
2 Changing the Collective Risk Limits for 3 See National Space Policy of the United States
Launches and Reentries and Clarifying the Risk of America (June 28, 2010), available at https:// 4 However, it should be noted that the FAA made
Limit Used to Establish Hazard Areas for Ships and www.whitehouse.gov/sites/default/files/national_ a non-substantive change to 417.107(b)(2) to
Aircraft, 79 FR 42241 (July 21, 2014). space_policy_6-28-10.pdf. improve consistency and clarity.
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![Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations 47019
1 × 10¥6. From a statistical perspective, ignores the risk contribution from a launch and reentry because the two are
this casualty-free launch record is the failure to initiate a planned reentry.’’ In separate events. A launch may not
expected outcome because 1 × 10¥6 particular, ACTA noted that ‘‘[t]here always be successful, and a single risk
corresponds to a one-in-a-million does not appear to be any consideration limit that encompasses both launch and
chance of a particular person being a for consequences if the health check reentry makes reentry risk calculations
casualty and there have been no more prior to reentry fails. . . . [The unnecessarily dependent on the
than a few thousand launches from the vehicle’s] orbit will eventually degrade probability of failure associated with
United States. The FAA therefore finds and re-enter . . . [and the] risk of this launch. The FAA leaves unchanged,
insufficient evidence at this time to potentially uncontrolled re-entry (if the however, the requirement that
justify relaxing the current individual health of the vehicle can never be suborbital launches and reentries must
risk limits, which are an integral part of restored) appears to be neglected.’’ comply with a single launch Ec limit
an interdependent set of safety ACTA is correct that the FAA does that encompasses the entire operation
requirements that have produced a not regulate the risk associated with from launch through final impact.
flawless public safety record for U.S. reentry vehicles or parts of reentry
vehicles that do not initiate or attempt C. Revising the Acceptable Risk
launches and reentries. Furthermore,
to initiate a purposeful reentry. As the Standard
the FAA notes that limiting risk to
individual members of the public at the FAA has explained, the Act limits the The FAA proposed to revise the
1 × 10¥6 level is consistent with the FAA’s licensing of reentry to scenarios acceptable risk limit for launch to 1 ×
consensus standard produced by U.S. involving purposeful reentry; 6 10¥4, encompassing all three hazards—
range safety organizations as adopted by therefore, the FAA is prohibited from debris, toxic release, and far field blast
NASA and the U.S. Air Force. considering the ‘‘possibility of a random overpressure. This would amend the
ACTA stated that maintaining the uncontrolled reentry that occurs as a risk framework’s three components by
current individual risk thresholds result of a reentry vehicle ceasing to aggregating the analysis of debris,
perpetuates inconsistent individual risk function upon arrival in orbit.’’ 7 toxics, and far field blast overpressure;
standards for ELVs, RLVs, and reentry Although the 2014 NPRM did not establishing a new, unified risk standard
vehicles. ACTA observed that propose to change the requirement that for the three primary hazards combined;
§ 417.107(b)(1)(ii) limits individual risk suborbital launches and reentries be and revising the risk standard to be
to 1 × 10¥6 for each hazard for ELVs. subject to a single launch Ec, the FAA expressed using one significant figure.
ACTA stated that this was inconsistent invited comment on the issue. Sierra The commenters addressed each of
with the risk threshold for RLVs and Nevada commented that suborbital these issues separately.
reentry vehicles in § 431.35(b)(2)(ii), flights also should have separate risk
limits for launch and reentry because 1. Aggregating Ec for Debris, Toxics, and
which limits total risk to an individual Far Field Blast Overpressure
to 1 × 10¥6 over the course of the entire each phase of flight required
mission, without any reference to independent operational decisions. ACTA, Orbital Sciences, and SpaceX
specific hazards. As a result, ACTA XCOR, on the other hand, commented supported the proposal to aggregate risk
argued, ELV missions would have a that suborbital vehicles should continue calculations. The FAA received no
different individual risk criterion than to have a single risk limit because, for negative comments on this component
missions involving an RLV or other a suborbital launch, ‘‘reentry is a of the proposal. Therefore, this final rule
reentry vehicle. physical inevitab[ility]’’; there is ‘‘no replaces the prior requirement to satisfy
ACTA’s recommendation to intervening event between launch and three separate Ec criteria (one each for
harmonize all individual risk limits is reentry’’; and that ‘‘reentry is closely debris, toxics, and far field blast
outside the scope of the current proximate in time—four minutes, for overpressure) with a single Ec criterion
rulemaking. Also, the FAA has most concepts to launch.’’ accounting for all three primary
insufficient data to justify a change to The FAA agrees with XCOR that a hazards.
the individual risk criteria for either suborbital mission should continue to
be analyzed using a single risk budget 2. Revising the Number of Significant
launch or reentry, and thus no change Figures
for the entire mission, from launch
was proposed. Finally, the current
through final impact, because there is Numerous commenters, including
regulatory framework governing
no intervening event between launch Blue Origin, Lockheed Martin, Orbital
individual risk for launch and reentry
and reentry and because reentry is a Sciences, and SpaceX, supported the
risk has successfully protected the
physical inevitability. Moreover, FAA’s proposal to express the risk
public since 2000.
separating launch and reentry risk limits threshold using one significant figure.
B. Separating Ec for Launch and Reentry for suborbital flights is beyond the scope Lockheed Martin stated that the
The FAA proposed to separate the Ec of this final rule because it would proposal ‘‘would improve efficiency and
limits for the launch and reentry of all require revising the definitions of maintain a level of safety for
reentry vehicles, instead of applying a ‘‘reentry’’ and ‘‘launch’’ found in commercial launches that is
single risk limit to both phases of a § 401.5, changes the NPRM did not commensurate with the current high
mission.5 propose. level of safety associated with civil and
Blue Origin, Lockheed Martin, Orbital The FAA will require separate military launches.’’
Sciences, and SpaceX fully supported analysis of the risks associated with ACTA and an individual commenter
the proposal to separate launch and advocated against changing the number
6 Waiver of Acceptable Mission Risk Restriction
reentry risk. ACTA supported the of significant figures. An individual
for Reentry and a Reentry Vehicle, 75 FR 75619,
commenter recommended that one
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proposal to separately assess launch and 75620 (Dec. 6, 2010).
reentry risk if reentry occurs after a 7 The Waiver explained that ‘‘[b]ecause a random significant figure would be more
health check, but noted that ‘‘separation uncontrolled reentry arising out of a reentry vehicle appropriate at the level of 1 × 10¥5.
ceasing to function upon arrival in orbit is not ACTA agreed with the proposal to
of risk budgets for launch and reentry purposeful and is thus not licensed, an
interpretation that section 431.35 applies to this
increase the risk limitations insofar as
5 The separation of E limits for launch and
c type of reentry would conflict with’’ limitations on ‘‘it is reasonable to apply a higher
reentry affects §§ 431.35(b) and 435.35. the FAA’s authority. acceptability limit (around 100 ×
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![47020 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations
10¥6),’’ but also stated the FAA’s uncertainty in a vehicle’s probability of percent chance that the true probability
proposal to both raise the limit and failure alone is generally large enough to of failure is at least twice the reference
reduce the number of significant figures render meaningless any calculated probability of failure estimate. It is
resulted in an effective increase of ‘‘the differences involving more than one impossible to know the true probability
acceptable risk limit to 50% above significant digit, such as a calculated of failure for any launch vehicle flight.
current Air Force and NASA practice.’’ difference of 100 × 10¥6 compared to The FAA believes that the uncertainty
Referring to the effects of revising the 149 × 10¥6 in Ec estimates for a in the probability of failure alone always
number of significant figures, ACTA commercial launch.9 Specifically, renders meaningless any more than one
stated that ‘‘the difference between 100 during SpaceX’s third Falcon 9 mission significant digit in any commercial
× 10¥6 and 149 × 10¥6 is real and (F9–003), two probability of failure launch or re-entry Ec estimate.
significant.’’ ACTA also stated that, analysis approaches applied by the two ACTA provided three alternatives to
because of this ‘‘effective’’ 50% major federal ranges for commercial the FAA’s July 2014 proposal. These
increase, the FAA’s proposal would not launches, which the FAA deemed alternatives included (1) using ‘‘the
maintain safety levels for commercial equally valid based on the requirements approach specified in RCC 321–10’’ in
space transportation commensurate in § 417.224, produced mean probability which increasing degrees of analysis
with the current requirements for civil of failure estimates during Eurasian and mitigation are required as the risk
and military reentries. Finally, ACTA over-flight that varied by approximately increases above 30 × 10¥6 and again at
also disagreed with the FAA’s rationale 40 percent. Also, the uncertainty in the 100 × 10¥6; (2) ‘‘[e]xpress[ing] the limit
for increasing the acceptable risk limit. Ec estimate scales linearly with the that log10(EC) is less than ¥4.0 (to two
In particular, ACTA stated that it is statistical uncertainty associated with significant figures’’; and (3)
inappropriate to exceed the Range any probability of failure analysis ‘‘[a]pply[ing] a limit of 9 × 10¥5 rather
Commanders Council (RCC) 321 method, even when the assumptions of than 1 × 10¥4 which results in an
consensus standard; the success of a the model are absolutely true. For effective limit of 95 × 10¥6.’’
relatively small number of missions example, applying the binomial The FAA appreciates the potential
operated under waivers is statistically approach in part 417, appendix A, value in using the RCC 321–10
irrelevant; and the continued use of § 417.25(b)(5)(iii), to a new vehicle with approach, in which increasing degrees
waivers is reasonable in a developing a record of no failures in the first two of analysis and mitigation are required
industry. flights produces a reference probability as the risk increases. Such a dramatic
The FAA disagrees that the difference of failure estimate of 0.28. Even if the change, however, is beyond the scope of
between 100 × 10¥6 and 149 × 10¥6 is assumption of Bernoulli trials 10 this rulemaking. The FAA disagrees
real and significant because the inherent in the binomial approach is with ACTA’s recommendations to
uncertainty associated with many of the absolutely true, which is doubtful given ‘‘[e]xpress the limit that log10(EC) is less
variables that go into determining Ec are the evolutionary nature of expendable than ¥4.0 (to two significant figures’’ or
too large to justify using more than one launch vehicles, particularly during the ‘‘[a]pply[ing] a limit of 9 × 10¥5 rather
significant digit. The FAA and others, first several flights, there is about a 20 than 1 × 10¥4 which results in an
including ACTA, have performed effective limit of 95 × 10¥6’’ because
extensive uncertainty analyses for both result, to quantify the uncertainty in the Ec estimate. either of those approaches would still
launch area and downrange overflight. ACTA itself developed a tool that computes the imply more significant digits in the Ec
uncertainty in the point estimate of Ec by using estimate than justified based on the Ec
These analyses accounted for aleatory— multiple input data sets within the range of
irreducible—and epistemic— feasibility given the uncertainty associated with the uncertainty analyses summarized above.
modeling—sources of uncertainty, input data, together with a multiple sets of factors
3. Establishing an Acceptable Risk Limit
including the inherent variability in the applied to each sub-model to account for the
estimated biases and uncertainties in the applicable of 1 × 10¥4
impact distribution due to wind and lift sub-models.
effects for irregular debris following 9 Of course, the probability of failure uncertainty
Under the 2014 NPRM,
failure; probability of failure; casualty is very large for relatively new vehicles, which are §§ 417.107(b)(1), 431.35(b)(1)(i), and
area for people in shelters that are most likely to have risk estimates near the 1 × 10¥4 435.35(b) would establish an acceptable
impacted by debris; size of the debris
Ec limit. However, even vehicles with extensive collective risk limit of 1 × 10¥4. Two
flight history, such as the Delta II, have probability
impact probability distribution; yield of failure estimates that vary by a factor of two or commenters, Lockheed Martin and
from exploding propellant and more based on the analysis approaches applied by SpaceX, supported the proposal without
propellant tanks; probability of injury the two major federal ranges where commercial additional significant comment. SpaceX
launches most often occur. For example, the Delta noted that the proposal would align the
from a blast wave for people in II demonstrated nine failures in 227 launches in
buildings or unsheltered; and advance of the GRAIL mission. Valid probability of FAA’s risk limit with the standards set
population density. Uncertainty also failure analysis methods produced mean estimates by other organizations within the U.S.
of probability of failure for the GRAIL launch Government.
exists in the Ec estimate for overflight between less than 2% to more than 4%, depending
because of the uncertainty in the time of Orbital Sciences supported the
on whether and how reliability growth was
launch,cargo debris, and different accounted for. proposal but also recommended that the
methods to characterize the normal 10 All expendable launch vehicle failure FAA ‘‘[e]xamine historical data for all
trajectory dispersions based on input probability analysis methods used by Federal U.S. launches and determine the highest
ranges today assume that launches may be treated level of collective risk realized by the
data provided by the launch operator. as Bernoulli trials: That the vehicle has a constant
A standard public risk analysis for ‘‘true probability’’ of failure for each and every public [to] propose a more realistic . . .
launch or reentry produces a single Ec launch, and that the outcome of each launch is collective risk [number] based on this
value, but these state-of-the-art analyses statistically independent of all others. A toss of an successful precedent.’’ Similarly, Blue
evenly weighted coin is a classic example of a Origin recommended that the collective
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demonstrate that the modeling Bernoulli trial. Of course, launches are not exactly
uncertainties are too large to justify Bernoulli trials because no two launches are risk number be revised higher than
calculating Ec to more than one precisely the same. For example, the vehicle may proposed, to 1 × 10¥3. Blue Origin
be modified or improved as needed during a noted that Federal ranges have, in the
significant figure.8 In fact, the sequence of launches, particularly if it has failed on
previous launches, and there are natural variations
past, waived risks associated with non-
8 In fact, an uncertainty analysis produces a set due to environmental conditions during the vehicle commercial reentry to as high as 1 ×
of point estimates, each of which is an equally valid manufacturing, processing, and launch. 10¥3, and stated, ‘‘[t]he commercial
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![Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations 47021
spaceflight industry should be held to risk that are below the level that may be Contrary to their assertion, the FAA is
the standard that the nation’s civil and acceptable in unusual circumstances or not relying on the historical success of
military programs are held to in on a short term basis. For aviation risk a relatively small number of past
practice.’’ 11 Blue Origin suggested that management, the FAA has identified launches as a justification for increasing
reducing the need for waivers would risk-informed Continued Airworthiness the acceptable risk standard. Rather, the
increase transparency and ‘‘more closely Assessment Methodologies (CAAM) that FAA, by statute, is authorized to
reflect FAA’s regulatory practice, rather include short term acceptable risks that regulate ‘‘only the extent necessary’’ to
than relying on a waiver process such as are orders of magnitude greater than protect public health and safety. 51
practiced by NASA and’’ the U.S. Air long term acceptable risk levels.13 Thus, U.S.C. 50901(a)(7). The U.S. Air Force
Force. Blue Origin further stated that, if AC 39–8 is another example of the FAA and NASA, two federal agencies with
the FAA adopts ‘‘a risk level that differs adopting a risk management approach significant expertise in this area, have
from [the FAA’s] actual practice, the where basic acceptability criteria are both examined the currently available
commercial spaceflight industry will be more stringent than may be acceptable data and concluded that it does not
left not knowing what the real, actual in unusual circumstances or on a short justify an aggregated Ec limit lower than
risk level will be in practice,’’ term basis. Note that the FAA’s use of 100 × 10¥6. Furthermore, there are
suggesting that reducing the agency’s quantitative risk analysis results is published materials that explain the
reliance on waivers would provide an consistent with the risk-informed rationale for the collective risk limit
important measure of stability and approach to regulatory decision-making adopted both by the U.S. Air Force and
predictability to the commercial space adopted by the Nuclear Regulatory NASA.15 16 17 The currently available
industry. Commission (NRC). In 1999, the NRC data does not justify a regulatory
The FAA disagrees with Orbital wrote that ‘‘a ‘risk-informed’ approach restriction on Ec for commercial
Sciences’ and Blue Origin’s to regulatory decision-making licensees that is more stringent than the
recommendations to increase the Ec represents a philosophy whereby risk standards adopted both by the U.S. Air
limit beyond 1 × 10¥4. The United insights are considered together with Force and NASA.
States has achieved a flawless public other factors to establish requirements D. Clarifying Hazard Areas for Ships
safety record for orbital launch and re- that better focus licensee and regulatory and Aircraft
entry missions in part because of a attention on design and operational
comprehensive and interdependent set issues commensurate with their Prior to this final rule, § 417.107(b)(3)
of public safety requirements developed importance to public health and and (4) required the launch operator of
an ELV to implement and establish ship
and implemented by numerous, safety.’’ 14
and aircraft hazard areas providing an
cooperating entities within the U.S. In light of these considerations and all
equivalent level of safety to that
government. Three U.S. government currently available data, the FAA finds
provided by the ship and aircraft hazard
entities, the U.S. Air Force, NASA, and that a collective Ec limit of 1 × 10¥4
areas implemented for launch from a
the FAA, have oversight of the safety of reflects an appropriate consensus safety
Federal launch range. 71 FR 50508. The
launches. Both the U.S. Air Force and risk standard for launch and re-entry.
FAA proposed to amend § 417.107(b)(3)
NASA, working alone and collaborating Consistent with Executive Orders 13563
and (4) to clarify the requirements for
through organizations such as the RCC and 13610, the FAA plans to
hazard areas for ships and aircraft,
and the Common Standards Working periodically review and revise this
respectively, by removing references to
Group, have examined the available public risk standard, if warranted, based an ‘‘equivalent level of safety to that
data and determined that 100 × 10¥6, upon factors such as the quantity of provided by [ship or aircraft] hazard
also expressed as 1 × 10¥4, is an launch and reentry activities, areas implemented for launch from a
appropriate standard for acceptable demonstrated reliability and safety Federal range’’ and replacing them with
risk.12 There are an insufficient number record and benefits provided, a numeric limit on the probability of
of casualty-free launches and reentries technological capabilities, and maturity impact with debris capable of causing a
with Ec greater than 1 × 10¥4 to justify of the industry. casualty.
departing from the standard adopted by ACTA and an individual commenter Orbital Sciences recommended that
the U.S. Air Force and NASA. In the few cautioned against justifying any increase no change be made to the hazard area
cases where waivers were granted by the to the acceptable risk standards by regulations. Orbital Sciences stated that
FAA, prior to and including 2014, the reference to either a relatively small the proposal to implement a specific
respective Ec was always less than the number of successful launches or the risk standard, even if it is quantitatively
risk levels previously approved for uncertainty of launch risk calculations. the same as the Federal launch ranges’
government launches. Hence, any The individual commenter standard, creates the possibility that the
precedent for granting waivers for prior recommended that any increase to the Federal launch ranges will change their
non-commercial reentries is not acceptable risk limits be premised on a standard and the FAA’s regulation will
sufficient justification for implementing determination that higher numbers still become obsolete. The FAA disagrees
a more lenient risk limit, especially in adequately ensure public safety. with Orbital Sciences’ recommendation.
light of the increased scrutiny given to The FAA disagrees with ACTA’s and Regardless of whether the Federal
each waiver applicant. the individual commenter’s premise
Moreover, a fundamental tenent of concerning the basis of this final rule. 15 See Range Commanders Council Risk
risk management, both as applied to the Committee of the Range Safety Group, Common
regulation and general safety 13 Federal Aviation Administration, Advisory Risk Criteria for National Test Ranges, RCC 321–10,
Circular No. 39–8, Continued Airworthiness White Sands Missile Range, New Mexico, 2010.
management of various industries, is to
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Assessments of Powerplants and Auxiliary Power 16 Wilde P., Public Risk Criteria and Rationale for
set acceptability criteria for collective Unit Installations of Transport Category Planes, Commercial Launch and Reentry, 5th IAASS
Washington, DC, September 2003. Symposium, Versailles, France, October 2011.
11 Emphasis in original. 14 U.S. Nuclear Regulatory Commission, 17 Wilde, P. Public Risk Tolerability Criteria for
12 See Range Commanders Council Risk Commission Issuance of White Paper on Risk- Space Launch and Reentry, Presented at the 51st
Committee of the Range Safety Group, Common informed and Performance-based Regulation, Scientific and Technical Subcommittee of the
Risk Criteria for National Test Ranges, RCC 321–10, Yellow Announcement # 019, Washington, DC, United Nations Committee on the Peaceful Uses of
White Sands Missile Range, New Mexico, 2010. dated March 11, 1999. Outer Space, Vienna, Austria, 18 Feb. 2014.
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![47022 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations
launch ranges change their risk criteria regulations that do address how hazard water borne vessels or in aircraft does
for ships and aircraft, the areas are to be used to implement not exceed the limit specified in
Administrative Procedure Act, with mitigation techniques, such as issuing [§ 417.107(b)(2)].’’ ACTA stated that this
limited exceptions, prohibits the FAA public warnings and performing revision would establish a ‘‘specific risk
from changing its regulatory surveillance. To meet the public risk value’’ while at the same time giving
requirements without notice and criteria of § 417.111(b), § 417.223 operators flexibility as to ‘‘the method of
comment. 5 U.S.C. 553. Therefore, even requires ‘‘a flight hazard area analysis protection’’ or risk mitigation. The
if the FAA maintained these provisions that identifies any regions of land, sea, regulations already allow a launch
using a purportedly outdated standard, or air that must be surveyed, publicized, operator to employ different methods of
a change to the Federal launch range controlled, or evacuated in order to mitigating risk so the FAA will not
requirements would not automatically control the risk to the public from debris adopt ACTA’s proposal.
flow through to FAA regulations, and impact hazards.’’ Furthermore,
E. Including Toxic Release in the
licensed launch operators would have to § 417.111(j) requires a launch operator
Reentry Risk Analysis
abide by the Federal launch range to ‘‘implement a plan that defines the
standard in effect when the FAA first process for ensuring that any The FAA proposed to include the
promulgated the regulation. unauthorized persons, ships, trains, risks associated with toxic release in the
Accordingly, if the Federal launch aircraft or other vehicles are not within Ec limitations for the reentry of an RLV
ranges change their standard, the FAA any hazard areas identified by the flight or other reentry vehicle. Blue Origin
will have to initiate its own rulemaking safety analysis or the ground safety opposed the proposal to include toxic
in order to harmonize its water-borne analysis,’’ and explicitly includes release in the reentry risk calculation.
vessel and aircraft hazard areas limits hazard areas identified under §§ 417.107 Blue Origin, quoting from the regulatory
with the Federal launch ranges’. To and 417.223. evaluation in the 2014 NPRM, stated
prevent this confusion, the FAA is ACTA also criticized the proposal for that ‘‘toxic release risks for reentry
revising § 417.107(b)(3) and (4) to failing to justify ‘‘why the acceptable vehicles are ‘expected to remain a minor
identify the numeric requirements. risk limit to the general public on ships factor in Ec calculations,’ because most
An individual commenter questioned is higher than for people on land.’’ The of the propellant will have been used
the proposed clarifications regarding the premise of this comment is not correct. during the mission . . .’’ The FAA is
ship and aircraft hazard areas. Specifically, § 417.107(b)(2) provides revising its position, and disagrees with
Specifically, the individual commenter that a launch operator may initiate flight Blue Origin’s assertion, because the
pointed out that the proposal, which is only if the risk to any individual FAA is aware of plans that involve the
based on the probability of impact with member of the public does not exceed return to land with a significant
debris capable of causing a casualty, a 1 × 10¥6 probability of casualty, hypergolic, highly toxic, propellant load
could be either excessively conservative regardless of the location of that carried until touchdown. The FAA
or non-conservative depending on the individual member of the public. Thus, therefore continues to include toxic
details of the analysis, such as the the FAA’s risk criteria provide equal release in the reentry risk analysis at
threshold characteristics of the debris protection to each individual member of this time.
and the size of the area considered the public, on ships or on land. F. Miscellaneous
vulnerable to such debris impact. ACTA Moreover, to the extent ACTA is
provided similar comments, stating the criticizing the water-borne vessel hazard Sierra Nevada recommended that the
regulations (1) do ‘‘not define the area areas requirement, the FAA is not FAA define orbital insertion to help
for computing impact’’ with a vessel or changing the water-borne vessel hazard ‘‘reduce misinterpretation of the
aircraft, and (2) do not clarify that area requirement; it is merely clarifying regulations’’ because ‘‘[s]etting a
operators must account for ‘‘the near- the requirement by removing a reference specific boundary would allow
field explosive effects of propellants to where the requirement can be found commercial space companies to clearly
impacting in the vicinity of [a] ship.’’ and replacing it with the actual understand the boundaries for expected
The individual commenter’s requirement. casualty limits.’’
recommendation to substantively ACTA also was concerned that the The FAA agrees with Sierra Nevada’s
amend the hazard area risk standards is criteria for ship and aircraft do not comments that § 417.107(b)(1) can be
outside the scope of this rulemaking. As explicitly exclude ‘‘mission-support amended to prevent potential
described in the 2014 NPRM, this final vessels and aircraft,’’ creating an misinterpretation.18 The FAA takes this
rule does not substantively change the inconsistency with the remainder of the opportunity to clarify that risk
hazard area risk standards. 79 FR 42241, regulation. Although ACTA is correct associated with planned impacts after
42249–50. The hazard area revisions that the criteria do not apply to vessels orbital insertion should not be included
only clarify the FAA’s standards by and aircraft that support the launch, the in an Ec analysis governed by § 417.107.
using a specific number, rather than an FAA’s launch and reentry regulations Accordingly, to minimize confusion, the
unquantified reference to Federal address only public safety, which FAA is removing the phrase ‘‘including
launch range standards. The FAA § 401.5 defines as ‘‘for a particular each planned impact’’ from
therefore rejects the commenter’s licensed launch, the safety of people § 417.107(b)(1) to state only that the
recommendations to make substantive and property that are not involved in operator account for risk through orbital
changes to the rule. supporting the launch . . .’’ It, insertion. The risk assessment
ACTA’s comments also included therefore, is unnecessary to explicitly conducted under § 417.107(b)(1) must
numerous additional observations exclude ‘‘mission-support vessels and
18 The FAA notes that its 2014 waiver for the
related to the hazard area regulations.
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aircraft’’ from the public safety criteria Orion Exploration Test Flight 1, which authorized
ACTA stated that the regulations do not for launch. an Ec of up to 218 × 10¥6, improperly accounted
‘‘specify how (or even if) hazard areas Finally, ACTA recommended that for public risks outside the scope of § 417.107(b)(1)
are to be used to implement mitigation’’ § 417.107(b)(3) and (4) state that ‘‘a by considering public risk associated with planned
impacts after orbital insertion in the Ec calculation.
to protect specific individuals or the launch operator must make reasonable Notice of Waiver, Mar. 10, 2014 (79 FR 13375);
general public. This observation, effort to ensure that the probability of Notice of Amended Waiver, Dec. 5, 2014, (79 FR
however, ignores other sections of the casualty to members of the public on 72240).
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![Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Rules and Regulations 47027
10¥4 would be exceeded if one person threshold, the applicant’s proposed launch aircraft, from each proposed reentry
were present in the open. site will fail the launch site location review. does not exceed an expected number of
* * * * * 1 × 10¥4 casualties from impacting inert
PART 431—LAUNCH AND REENTRY and explosive debris and toxic release
■ 6. In § 420.25, revise paragraph (b) to OF A REUSABLE LAUNCH VEHICLE associated with the reentry; and
read as follows: (RLV) (c) The risk level to an individual
§ 420.25 Launch site location review—risk ■ 9. The authority citation for part 431 does not exceed 1 × 10¥6 probability of
analysis.
continues to read as follows: casualty per mission.
* * * * * Issued under authority provided by 49
Authority: 51 U.S.C. 50901–50923.
(b) For licensed launches, the FAA U.S.C. 106(f), and 51 U.S.C. 50903, 50905 in
will not approve the location of the ■ 10. In § 431.35, revise paragraph (b)(1) Washington, DC, on July 11, 2016.
proposed launch point if the estimated to read as follows: Michael P. Huerta,
expected casualty exceeds 1 × 10¥4. Administrator.
§ 431.35 Acceptable reusable launch
■ 7. In Appendix C to part 420, revise vehicle risk. [FR Doc. 2016–17083 Filed 7–19–16; 8:45 am]
paragraphs (a)(2) and (d)(1) and (2) to * * * * * BILLING CODE 4910–13–P
read as follows: (b) * * *
Appendix C to Part 420—Risk Analysis (1) To obtain safety approval, an
applicant must demonstrate the DEPARTMENT OF HOMELAND
(a) * * * following for public risk: SECURITY
(2) An applicant shall perform a risk
analysis when a populated area is located
(i) The risk to the collective members
of the public from the proposed launch Coast Guard
within a flight corridor defined by either
appendix A or appendix B. If the estimated meets the public risk criteria of
§ 417.107(b)(1) of this chapter; 33 CFR Part 165
expected casualty exceeds 1 × 10¥4, an
applicant may either modify its proposal, or (ii) The risk level to the collective [Docket Number USCG–2016–0650]
if the flight corridor used was generated by members of the public, excluding
the appendix A method, use the appendix B RIN 1625–AA00
persons in water-borne vessels and
method to narrow the flight corridor and then aircraft, from each proposed reentry
redo the overflight risk analysis pursuant to Safety Zone; Houma Navigation Canal
does not exceed an expected number of Miles 23 to 23.5, Dulac, LA
this appendix. If the estimated expected
1 × 10¥4 casualties from impacting inert
casualty still exceeds 1 × 10¥4, the FAA will
not approve the location of the proposed and explosive debris and toxic release AGENCY: Coast Guard, DHS.
launch point. associated with the reentry; and ACTION: Temporary final rule.
(iii) The risk level to an individual
* * * * *
(d) * * * does not exceed 1 × 10¥6 probability of SUMMARY: The Coast Guard is
(1) If the estimated expected casualty does casualty per mission. establishing a temporary safety zone for
not exceed 1 × 10¥4, the FAA will approve * * * * * all navigable waters surface to bottom,
the launch site location. ■ 11. In § 431.43, revise paragraph (d)(2) of the Houma Navigation Canal from
(2) If the estimated expected casualty to read as follows: mile marker 23 to 23.5. The safety zone
exceeds 1 × 10¥4, then an applicant may is needed to protect personnel, vessels,
either modify its proposal, or, if the flight * * * * *
and the marine environment from
corridor used was generated by the appendix (d) * * *
potential hazards created by
A method, use the appendix B method to (2) The expected number of casualties
replacement work of the Falgout Canal
narrow the flight corridor and then perform to members of the public does not
Pontoon Bridge. Entry of vessels or
another appendix C risk analysis. exceed 1 × 10¥4 given a probability of
persons into this zone is prohibited
vehicle failure equal to 1 (pf=1) at any
■ 8. In Appendix D to part 420, revise unless specifically authorized by the
time the IIP is over a populated area;
paragraphs (a)(5) and (e)(2) and (3) to Captain of the Port Morgan City or a
* * * * * designated representative.
read as follows:
PART 435— REENTRY OF A REENTRY DATES: This rule is effective without
Appendix D to Part 420—Impact
Dispersion Areas and Casualty VEHICLE OTHER THAN A REUSABLE actual notice from 7:00 a.m. until 7:00
Expectancy Estimate for an Unguided LAUNCH VEHICLE (RLV) p.m. daily from July 20, 2016 through
Suborbital Launch Vehicle July 27, 2016. For the purposes of
■ 12. The authority citation for part 435 enforcement, actual notice will be used
(a) * * * continues to read as follows: from 7:00 a.m. until 7:00 p.m. daily
(5) If the estimated Ec is less than or equal from July 7, 2016 through July 20, 2016.
to 1 × 10¥4, the FAA will approve the launch Authority: 51 U.S.C. 50901–50923.
point for unguided suborbital launch ADDRESSES: To view documents
■ 13. Revise § 435.35 to read as follows:
vehicles. If the estimated Ec exceeds 1 × mentioned in this preamble as being
10¥4, the proposed launch point will fail the § 435.35 Acceptable reusable launch available in the docket, go to http://
launch site location review. vehicle risk. www.regulations.gov, type USCG–2016–
* * * * * To obtain safety approval for reentry, 0650 in the ‘‘SEARCH’’ box and click
(e) * * * an applicant must demonstrate the ‘‘SEARCH.’’ Click on Open Docket
(2) If the estimated expected casualty does following for public risk: Folder on the line associated with this
not exceed 1 × 10¥4, the FAA will approve (a) The risk to the collective members rule.
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the launch point. FOR FURTHER INFORMATION CONTACT: If
of the public from the proposed launch
(3) If the estimated expected casualty
exceeds 1 × 10¥4, then an applicant may meets the public risk criteria of you have questions on this rule, contact
modify its proposal and then repeat the § 417.107(b)(1) of this chapter; MSTC Justin Helton, Marine Safety Unit
impact risk analysis in accordance with this (b) The risk level to the collective Houma, U.S. Coast Guard; telephone
appendix D. If no set of impact dispersion members of the public, excluding 985–850–6457, email Justin.K.Helton@
areas exist which satisfy the FAA’s risk persons in water-borne vessels and uscg.mil.
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Document Created: 2018-02-08 07:56:50
Document Modified: 2018-02-08 07:56:50
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective September 19, 2016. | |
| 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 [email protected] | |
| FR Citation | 81 FR 47017 | |
| RIN Number | 2120-AK06 | |
| CFR Citation | 14
CFR
417 14 CFR 420 14 CFR 431 14 CFR 435 | |
| CFR Associated | Launch and Reentry Safety; Aviation Safety; Reporting and Recordkeeping Requirements; Rockets; Space Transportation and Exploration; Environmental Protection and Launch Safety |
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