
[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Rules and Regulations]
[Pages 75619-75621]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30402]



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  Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / 
Rules and Regulations  

[[Page 75619]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 431


Waiver of Acceptable Mission Risk Restriction for Reentry and a 
Reentry Vehicle

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of waiver.

-----------------------------------------------------------------------

SUMMARY: This notice of waiver concerns two petitions for waiver 
submitted to the FAA by Space Exploration Technologies Corp. (SpaceX): 
A petition to waive the requirement that a waiver petition be submitted 
at least sixty days before the proposed effective date; and a petition 
to waive the restriction that the combined risk to the public from the 
launch and reentry of a reentry vehicle not exceed an expected average 
number of 0.00003 casualties (Ec <= 30 x 10-6) 
from debris. The first petition is unnecessary because, as explained 
below, SpaceX demonstrated good cause for its late filing. The FAA 
grants the second petition and waives the restriction that the combined 
risk to the public from the launch and reentry of a reentry vehicle not 
exceed an expected average number of 0.00003 casualties (Ec 
<= 30 x 10-6) from debris.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this waiver, contact Philip Brinkman, Licensing Program Lead, 
Commercial Space Transportation--Licensing and Safety Division, 800 
Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-
7715; e-mail: phil.brinkman@faa.gov. For legal questions concerning 
this waiver, contact Laura Montgomery, Senior Attorney for Commercial 
Space Transportation, AGC-200, Office of the Chief Counsel, Regulations 
Division, Federal Aviation Administration, 800 Independence Avenue, 
SW., Washington, DC 20591; telephone: (202) 267-3150.

SUPPLEMENTARY INFORMATION:

Background

    On October 11, 2010, SpaceX submitted a waiver petition to the 
Federal Aviation Administration's (FAA's) Office of Commercial Space 
Transportation (AST) requesting two waivers with respect to a reentry 
license for Dragon, a reentry vehicle, to be carried aboard Falcon 9 
flight 002. First, SpaceX requested a waiver of 14 CFR 404.3(b)(5), 
which requires that a waiver petition be submitted at least sixty days 
before the proposed effective date of the waiver. Second, SpaceX 
requested a waiver of 14 CFR 431.35(b)(1)(i),\1\ which prohibits a 
mission involving a reentry vehicle when the total expected average 
number of casualties (Ec) for that mission exceeds 30 x 
10-6.
---------------------------------------------------------------------------

    \1\ Even though Dragon is a reentry vehicle and not a reusable 
launch vehicle, 14 CFR 435.35 incorporates and applies section 
431.35 to all reentry vehicles.
---------------------------------------------------------------------------

    The FAA licenses the launch of a launch vehicle, reentry of a 
reentry vehicle, and the operation of a launch or reentry site under 
authority granted to the Secretary of Transportation in the Commercial 
Space Launch Act of 1984, as amended, codified in 49 U.S.C. Subtitle 
IX, chapter 701 (Chapter 701), and delegated to the FAA Administrator. 
The Associate Administrator for Commercial Space Transportation 
exercises licensing authority under Chapter 701.
    SpaceX is a private commercial space flight company. It has entered 
into a Space Act Agreement with the National Aeronautics and Space 
Administration (NASA) as part of NASA's Commercial Orbital 
Transportation Services (COTS) program. The COTS program is designed to 
stimulate efforts by the private sector to demonstrate safe, reliable, 
and cost-effective space transportation to the International Space 
Station.
    The petition addresses an upcoming demonstration flight that SpaceX 
plans to undertake as part of the COTS program. At the time of the 
filing of the petition, the launch was scheduled for November 8, 2010. 
SpaceX's Falcon 9 launch vehicle will launch a reentry vehicle, named 
Dragon, into orbit. Once Dragon is in orbit, it will be subjected to a 
ground-implemented health check. The health check is designed to check 
time-dependent variables to ensure the health and functionality of the 
propellant, power, and avionics subsystems. If Dragon passes the health 
check, a ground operator will issue a remote command to reenter, which 
will initiate Dragon's reentry and ultimately result in Dragon 
splashing down in the ocean off the coast of Southern California. If 
Dragon fails the health check, the ground operator will issue a remote 
command that will disable Dragon's reentry, leaving Dragon in orbit.
    While planning for this mission, SpaceX calculated that 21 x 
10-6 is the expected average number of casualties 
(Ec) to which the public will be exposed by vehicle or 
vehicle debris impact hazards associated with the launch of Falcon 9 
and reentry of Dragon. Because this Ec was less than the 30 
x 10-6 limit imposed by 14 CFR 431.35(b)(1)(i), SpaceX 
believed that it complied with the regulations.
    The FAA informed SpaceX that the FAA assessed the risk for the 
launch of Falcon 9 and reentry of Dragon as 47 x 10-6. The 
Ec for the launch of Falcon 9 is 19 x 10-6, and 
by adding an Ec of 7 x 10-6 to account for the 
nominal reentry of Dragon and an Ec of 21 x 10-6 
to account for the possibility that Dragon will initiate a failed 
attempt at reentry, the FAA obtained a total Ec value of 47 
x 10-6 for the launch of Falcon 9 and reentry of Dragon. 
Because the FAA's calculations resulted in a total Ec value 
that exceeded the 30 x 10-6 limit imposed by section 
431.35(b)(1)(i), the FAA informed SpaceX that it would need to obtain a 
waiver.
    In response, SpaceX filed two petitions for a waiver. First, SpaceX 
requested a waiver of the requirement that a petition be submitted at 
least sixty days before the proposed effective date of the waiver. 
Second, SpaceX requested a waiver of the restriction that the total 
Ec for a launch and reentry not exceed 30 x 10-6. 
In its waiver request, SpaceX emphasized that it had attempted to 
ensure public safety by adopting the following risk mitigation measures 
for Dragon:
    1. Dragon's thermal protection system has been modified so that if 
it enters facing down it will burn and demise.

[[Page 75620]]

    2. Dragon can keep orbiting in order to increase the probability of 
initiating a safe reentry.
    3. Dragon will automatically vent its propellants if it is not able 
to reenter as planned. Venting occurs autonomously, but SpaceX has the 
ability to issue a back-up command from the ground.
    4. In the case of a failed or degraded deorbit burn, Dragon 
automatically drains propellants and subsequently deploys its 
parachutes.
    5. A ground command received through one of three receivers and 
through multiple RF links, via TDRSS and multiple ground stations, can 
command the venting of any remaining fuel and the draining of battery 
power to reduce the possibility of explosion or toxic fumes when Dragon 
lands.
    6. Dragon has the ability to autonomously guide itself to a pre-
determined site located more than 780 km from the coastline.
    7. Dragon has the ability to monitor its safety-critical systems in 
real-time.
    8. Dragon has over 100% margin on both power and propellant 
budgets.
    9. Dragon has a space-grade Inertial Measurement Unit and space-
grade flight computer, both of which have extensive flight heritage 
including use on the International Space Station.
    10. Dragon has redundant drogue parachutes and dual redundant main 
parachutes.
    11. The vehicle's thrusters are plumbed such that Dragon can 
deorbit and reenter with the loss of any two entire propulsion modules.
    12. The vehicle has backup capabilities within all of its major 
subsystems.

Waiver Criteria

    Chapter 701 allows the FAA to waive a license requirement if the 
waiver (1) will not jeopardize public health and safety, safety of 
property, (2) will not jeopardize national security and foreign policy 
interests of the United States, and (3) will be in the public interest. 
49 U.S.C. 70105(b)(3) (2010); 14 CFR 404.5(b) (2010).

Section 404.3 Waiver Petition

    Section 404.3(b)(5) requires that a petition for a waiver be 
submitted at least sixty days before the proposed effective date of the 
waiver. However, this section also provides that a petition may be 
submitted late if the petitioner shows good cause. Id. (b)(5).
    Here, SpaceX submitted its waiver petition on October 11, 2010, 
which was less than sixty days from its planned November 8, 2010, 
launch date. However, in its petition, SpaceX explained that it 
initially calculated the risk for the launch of Falcon 9 and the 
reentry of Dragon in a different manner than the FAA, and was not aware 
that a waiver would be required until so informed by the FAA. Once the 
FAA informed SpaceX that it needed to obtain a waiver, SpaceX proceeded 
to apply for the waiver ``in a timely fashion.'' As such, the FAA has 
found that SpaceX had good cause for submitting its waiver petition 
less than sixty days from the planned November 8, 2010, launch date. 
Therefore, SpaceX's late submission does not violate section 
404.3(b)(5), and a waiver of that section is unnecessary.

Section 431.35(b)(1)(i) Waiver Petition

    Section 431.35(b)(1)(i) prohibits a launch and reentry mission if 
the total Ec for that mission exceeds 30 x 10-6. 
For reasons described below, the FAA waives this restriction to allow 
SpaceX to conduct a mission whose total Ec is 47 x 
10-6, where launch and reentry are each less than 30 x 
10-6. In deciding whether or not to issue a waiver, the FAA 
had to analyze whether the waiver: (1) Would jeopardize public health 
and safety or safety of property; (2) would jeopardize national 
security and foreign policy interests of the United States; and (3) was 
in the public interest. See 49 U.S.C. 70105(b)(3); 14 CFR 404.5(b).

A. Public Health and Safety and Safety of Property

    In order to determine whether granting a waiver would jeopardize 
public health and safety or safety of property, the FAA considered: (1) 
Whether section 431.35 requires that the Ec calculations 
account for the possibility of a random uncontrolled reentry that 
occurs as a result of a reentry vehicle ceasing to function upon 
arrival in orbit; (2) whether granting a waiver would be consistent 
with the safety rationale underlying section 431.35; and (3) whether 
there were any other factors that would impact the waiver decision in 
this case.
i. Random Uncontrolled Reentry
    At the outset, the FAA first addressed whether to account for 
random uncontrolled reentry not associated with a licensed reentry. 
Section 431.35 could apply to two types of random uncontrolled reentry: 
(1) A random uncontrolled reentry occurring as a result of a failed 
reentry attempt; and (2) a random uncontrolled reentry occurring as a 
result of a reentry vehicle ceasing to function upon arrival in orbit.
    The preamble to the final rule provides ambiguous guidance on this 
matter. Commercial Space Transportation Reusable Launch Vehicle and 
Reentry Licensing Regulations, Final Rule, 65 FR 56618 (Sep. 19, 2000). 
When discussing the possibility of requiring contingency abort 
locations for reentries, the preamble states that an applicant would 
have to show that an uncontrolled random reentry would not exceed 
acceptable risk criteria for the mission. Id. at 56641. Another part of 
the preamble states that risk to public safety from a reentry that is 
``essentially random or otherwise non-nominal'' would be assessed as 
part of the licensing process and an applicant would have to 
demonstrate that such a reentry would not exceed acceptable risk 
criteria for the mission. Id. at 56623 n.2. As a result of this waiver 
petition, the FAA has had to address to which of the two possible 
random reentry scenarios this assessment must apply.
    One possible interpretation of the preamble is that section 431.35 
requires that the Ec calculations account for the 
possibility of a random uncontrolled reentry that occurs as a result of 
a reentry vehicle ceasing to function upon arrival in orbit. However, 
this interpretation would be problematic because Chapter 701 limits the 
FAA's licensing of reentry to scenarios involving purposeful reentry. 
See 49 U.S.C. 70102(12) (defining ``reentry'' as a purposeful act); see 
also 65 FR at 56624 (clarifying that, under Chapter 701, section 431.35 
is intended to regulate scenarios in which ``survivability by design is 
combined with the purposeful act of reentry''). Because a random 
uncontrolled reentry arising out of a reentry vehicle ceasing to 
function upon arrival in orbit is not purposeful and is thus not 
licensed, an interpretation that section 431.35 applies to this type of 
reentry would conflict with Chapter 701.
    The better approach is to limit the risk associated with a random 
uncontrolled reentry to that caused by a failed reentry attempt. 
Because an attempt at a reentry is a purposeful act and thus requires a 
license, the FAA should account for the risk associated with a random 
uncontrolled reentry that occurs as a result of a failed attempt. See 
49 U.S.C. at 70102(12); 65 FR at 56624.
    Under the above rationale, the total Ec for the reentry 
of Dragon is the Ec for nominal reentry (7 x 
10-6) plus the Ec for the possibility of a failed 
attempt at reentry (21 x 10-6), which results in a total 
reentry Ec of 28 x 10-6. When the Ec 
for the launch of Falcon 9 (19 x 10-6) is added to the 
reentry Ec of Dragon, the combined Ec for the 
Falcon 9 launch and Dragon reentry comes out to 47 x 10-6.

[[Page 75621]]

ii. Consistency With Rationale for Section 431.35
    The next matter that the FAA addressed was whether granting a 
waiver in this case would be consistent with the safety rationale 
underlying section 431.35. In the preamble to the notice of proposed 
rulemaking (NPRM), the FAA explained that, when it was drafting section 
431.35, it decided to use a single aggregate risk threshold for a 
mission involving the launch and reentry of a reentry vehicle. 
Commercial Space Transportation Reusable Launch Vehicle and Reentry 
Licensing Regulations, NPRM, 64 FR 19626, 19635 (Apr. 21, 1999). 
However, the FAA also acknowledged that there could be circumstances 
where it would be appropriate to separate launch from reentry risk, 
such as where different operators were involved and could be 
apportioned allowable risk thresholds, or where intervening events or 
time made reentry risks sufficiently independent of launch risks as to 
warrant separate consideration. Id.
    Here, the health check of Dragon, a different vehicle than the 
Falcon 9 launch vehicle, that will take place once Dragon is in orbit 
is an intervening event that makes the launch risk associated with the 
launch of Falcon 9 independent of the reentry risk associated with the 
reentry of Dragon. The health check will permit SpaceX to reevaluate 
Dragon's condition after the launch has taken place, and to make a 
fresh determination about whether Dragon should be permitted to 
reenter. If, after conducting a post-launch health check of Dragon, 
SpaceX finds safety concerns associated with reentry, SpaceX will be 
able to issue a command to disable Dragon's reentry. As such, because 
the reentry of Dragon is based on the results of an in-orbit health 
check that will be conducted independently of the launch, the risks 
associated with the launch of Falcon 9 and reentry of Dragon are 
sufficiently independent to warrant separate consideration in this 
case.
    Evaluating these risks separately, the Ec for the launch 
of Falcon 9 is 19 x 10-6, which is within the 30 x 
10-6 limit imposed by section 431.35(b)(1)(i). Likewise, the 
Ec for the reentry of Dragon is 28 x 10-6, which 
is also within the 30 x 10-6 limit that the FAA applies to 
launch hazards. Accordingly, the FAA has determined that granting a 
waiver in this case would be consistent with the safety rationale 
underlying section 431.35.
iii. Other Factors Impacting the Waiver Decision
    Dragon's mitigation measures were another factor that influenced 
the FAA's analysis with regard to whether a waiver would jeopardize 
public health and safety and safety of property. As stated above, the 
Dragon capsule employs numerous risk mitigation measures to reduce the 
risk to the public from the launch of Falcon 9 and reentry of Dragon.
    The FAA has taken particular notice of the way in which Dragon's 
electrical power system (batteries), flight computer, and propulsion 
system will reduce risk to the public. For instance, Dragon has more 
than four times the propellant needed for a safe reentry in the target 
area. The additional propellant increases the probability that Dragon 
will land in its nominal target area instead of a population center. 
Dragon also has three parachutes, which decrease risk to the public 
because only one of these parachutes is necessary for a low impact 
landing. The additional parachutes reduce the chance that Dragon will 
crash into the ground while attempting to land.
    SpaceX has also designed the Dragon reentry vehicle to vent 
propellants in the case of an aborted or off-nominal reentry. This 
mitigation measure greatly reduces the risk to the public because it 
allows Dragon to safely dispose of hazardous propellant materials if 
something should go wrong with the mission.
    As a result of Dragon's mitigation measures, as well as the other 
considerations discussed above, the FAA has determined that granting a 
waiver in this case would not jeopardize public health and safety or 
safety of property.

B. National Security and Foreign Policy Implications

    The FAA has identified no national security or foreign policy 
implications associated with granting this waiver.

C. Public Interest

    Two of the public policy goals of Chapter 701 are: (1) To promote 
economic growth and entrepreneurial activity through use of the space 
environment; and (2) to encourage the United States private sector to 
provide launch and reentry vehicles and associated services. 49 U.S.C. 
70101(b)(1) and (2). Here, granting this waiver is consistent with the 
public interest goals articulated by Chapter 701.
    A goal of the COTS program's mission is to ultimately develop the 
capability to resupply the International Space Station. SpaceX's 
demonstration launch of Falcon 9 and reentry of Dragon is a step toward 
achieving that goal. This demonstration launch is important in light of 
the fact that the U.S. Government is ending the Space Shuttle Program 
and NASA plans to rely upon its COTS Program to develop a robust 
domestic commercial space transportation capability. This capability 
will provide the United States with the ability to resupply the 
International Space Station. As such, granting SpaceX's waiver request 
will be consistent with Chapter 701's policy goals by: (1) Promoting 
SpaceX's entrepreneurial activity in the space environment; and (2) 
encouraging a private U.S. company to develop and launch a launch 
vehicle (Falcon 9) and a reentry vehicle (Dragon).

Summary and Conclusion

    A waiver will not jeopardize public health and safety or safety of 
property because: (1) The risk associated with the launch of Falcon 9 
and the risk associated with the reentry of Dragon are each under an 
Ec of 30 x 10-6; and (2) the Dragon capsule 
employs numerous risk mitigation measures including an in-orbit health 
check. The waiver also will not jeopardize national security and 
foreign policy interests of the United States. A waiver is in the 
public interest because it furthers the statutory goals of Chapter 701. 
For the foregoing reasons, the FAA has waived the restriction that the 
combined risk to the public from the launch of Falcon 9 and reentry of 
Dragon cannot exceed an expected average number of 0.00003 casualties 
(30 x 10-6) from debris.

    Issued in Washington, DC, on November 30, 2010.
Kenneth Wong,
Commercial Space Transportation, Licensing and Safety Division Manager.
[FR Doc. 2010-30402 Filed 12-3-10; 8:45 am]
BILLING CODE 4910-13-P


