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Rules and Regulations Federal Register

75619 

Vol. 75, No. 233 

Monday, December 6, 2010 

1Even 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. 

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 × 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 × 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 × 10¥6. 

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 × 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 × 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 × 

10¥6. The Ec for the launch of Falcon 9 

is 19 × 10¥6, and by adding an Ec of 7 

× 10¥6 to account for the nominal 

reentry of Dragon and an Ec of 21 × 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 × 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 × 

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 × 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. 


jdjones on DSK8KYBLC1PROD with RULES
75620 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

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 predetermined 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 × 10¥6. 

For reasons described below, the FAA 

waives this restriction to allow SpaceX 

to conduct a mission whose total Ec is 

47 × 10¥6, where launch and reentry are 

each less than 30 × 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 × 10¥6) plus the Ec

for the possibility of a failed attempt at 

reentry (21 × 10¥6), which results in a 

total reentry Ec of 28 × 10¥6. When the 

Ec for the launch of Falcon 9 (19 × 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 × 

10¥6. 


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

10¥6, which is within the 30 × 10¥6

limit imposed by section 431.35(b)(1)(i). 

Likewise, the Ec for the reentry of 

Dragon is 28 × 10¥6, which is also 

within the 30 × 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 × 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 × 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 431 

Office of Commercial Space 

Transportation; Waiver of Autonomous 

Reentry Restriction for a Reentry 

Vehicle 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of waiver. 


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