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[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Notices]
[Pages 28930-28933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09685]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Waivers of Ship Protection Probability of Impact Requirement

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of waivers.

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SUMMARY: This notice concerns two petitions for waiver submitted to the 
FAA by Space Exploration Technologies Corp. (SpaceX): A petition to 
waive the requirement that a waiver request be submitted at least 60 
days before the effective date of the waiver unless good cause for 
later submission is shown in the petition; and a petition to waive the 
requirements that exclude persons in waterborne vessels from the 
collective risk criteria and limit the probability of impact on 
waterborne vessels to 1 x 10-5.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this waiver, contact Paul D. Wilde, Deputy Chief Engineer, Commercial 
Space Transportation, 800 Independence Avenue SW., Washington, DC 
20591; telephone: (202) 267-5727; email: Paul.Wilde@faa.gov. For legal 
questions concerning this waiver, contact Laura Montgomery, Office of 
the Chief Counsel, Regulations Division, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-3150; email: Laura.Montgomery@faa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    On April 1, 2016, SpaceX submitted a petition to the Federal 
Aviation Administration's (FAA's) Office of Commercial Space 
Transportation (AST) requesting relief from a regulatory requirement 
for a launch license for flight of a Falcon 9 launch vehicle carrying 
SpaceX's Dragon capsule. Specifically, SpaceX requested relief from 14 
CFR 417.107(b), which excludes persons in waterborne vessels from the 
collective risk limit of 30 x 10-6 expected casualties 
(EC) and limits the probability of impact with waterborne

[[Page 28931]]

vessels to 1 x 10-5. \1\ The FAA is treating the request for 
a waiver to also apply to Appendix B to part 417, paragraph 417.5(a), 
which requires evacuation and monitoring of hazard areas. The launch 
operator does not initiate flight until the hazard area clears when the 
area cannot be evacuated. Because the scheduled launch was planned to 
occur in less than sixty days, SpaceX also requested a waiver to Sec.  
404.3(b)(5), which requires that a petition for waiver be submitted at 
least sixty days before the proposed effective date of the waiver, 
which in this case would be the date of the planned launch.
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    \1\ In 2014, the FAA proposed to clarify the requirements of 
part 417 concerning hazard areas for ships and aircraft. Notice of 
Proposed Rulemaking, 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). The proposed clarification provided in the 2014 NPRM was that 
``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 0.00001 (1 x 10-\5\).'' Id. at 42253.
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    The FAA licenses the launch of a launch vehicle and reentry of a 
reentry vehicle under authority granted to the Secretary of 
Transportation in the Commercial Space Launch Act of 1984, as amended 
and re-codified by 51 U.S.C. Subtitle V, chapter 509 (Chapter 509), and 
delegated to the FAA Administrator and the Associate Administrator for 
Commercial Space Transportation, who exercises licensing authority 
under Chapter 509.
    SpaceX is a private commercial space flight company. The petition 
addresses an upcoming flight that SpaceX plans to undertake to deliver 
the cargo inside the Dragon capsule to the International Space Station 
(ISS) as its eighth Commercial Resupply Service mission (CRS-8). SpaceX 
plans for its Falcon 9 launch vehicle to launch from Cape Canaveral Air 
Force Station (CCAFS) and fly back the first stage to a barge for 
landing. During a previous launch of the Falcon 9 from CCAFS to deliver 
the SES-9 payload to orbit, SpaceX was delayed by the presence of a tug 
boat towing a large barge inside the ship hazard area in compliance 
with the FAA's requirement in Sec.  417.107(b) to limit the probability 
of impact for waterborne vessels to 1 x 10-5.
    Waiver Criteria:
    Chapter 509 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. 
51 U.S.C. 50905(b)(3) (2011); 14 CFR 404.5(b) (2011).

Section 404.3(b)(5) Waiver Petition

    Section 404.3(b)(5) requires that a petition for waiver be 
submitted at least sixty days before the proposed effective date of the 
waiver. This section also provides that a petition may be submitted 
late if the petitioner shows good cause.
    Here, SpaceX submitted its waiver petition on April 1, 2016, for 
the F9 CRS-8 mission, which was less than sixty days from its planned 
April 8, 2016 launch date. However, SpaceX initially submitted a 
request on January 19, 2016, for its Falcon 9 launches, which included 
the CRS and geosynchronous transfer orbit (GTO) missions. In response 
to the January 19 waiver petition, the FAA informed SpaceX that it was 
unable to grant that request for relief because the FAA did not have 
adequate time to complete its evaluation of the petition, but would 
keep SpaceX abreast of its findings once the evaluation was completed. 
The FAA has been considering the issues raised since January and is now 
able to address them, and advised SpaceX of that. Accordingly, the FAA 
is able to find good cause because SpaceX's January 19 waiver petition 
covered the F9 CRS missions, including CRS-8.

Section 417.107(b) Waiver Petition

    Section 417.107(b) allows a launch operator to initiate flight only 
if the risk associated with the total flight to all members of the 
public, excluding persons in waterborne vessels and aircraft, does not 
exceed an expected average number of 0.00003 casualties (EC-6) from impacting inert and impacting explosive 
debris, (EC-6) for toxic release, 
(EC-6) and for far field blast 
overpressure.
    Additionally, a launch operator must implement water borne vessel 
hazard areas that provide an equivalent level of safety to that 
provided by water borne vessel hazard areas implemented for launch from 
a Federal launch range.\2\
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    \2\ In 2014, the FAA proposed a clarification of this 
requirement. ``Under proposed section 417.107(b)(3), a hazard area 
for water borne vessels would satisfy part 417 if the probability of 
impact with debris capable of causing a casualty on any given water 
borne vessel did not exceed 0.00001 (1 x 10-5).'' Id. at 
42244. The FAA explained that Sec.  417.107(b)(3) permits a launch 
operator to set a hazard-area level of safety that is equivalent to 
the one used by federal launch ranges with the least burdensome 
hazard area limit. While each federal launch range has its own 
safety criteria for hazard areas, the federal launch range with the 
least burdensome limit for hazard areas imposes a probability of 
impact (Pi) limit of 1 x 10-5 for water-borne-vessel 
hazard areas. Id. at 42249-50.
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Launch of the Falcon 9 Vehicle

    The FAA does not need to address SpaceX's request to waive the 
exclusion of people in waterborne vessels from the risk limits of Sec.  
417.107(b). That exclusion is not a requirement that can be waived, but 
merely a statement that the collective risk requirement does not apply 
to persons in waterborne vessels. Accordingly, this waiver only 
addresses the requirement that a launch operator must ensure the 
probability of impact (Pi) with debris capable of causing a casualty 
for water borne vessels does not exceed 1 x 10-5. The FAA 
grants SpaceX's request for a waiver for the Falcon 9 CRS-8 launch 
because it is in the public interest and will not jeopardize public 
health and safety, safety of property, or national security or foreign 
policy interests of the United States.

i. Public Health and Safety and Safety of Property

    The Falcon 9 CRS-8 launch is the ninth launch of an expendable 
launch vehicle with a Dragon capsule bound for the ISS. SpaceX has 
attempted three landings of its Falcon 9 first stage on a barge on the 
ocean off CCAFS. The stages reached their intended landing spot, but 
did not survive the landings. In no case was public health or safety or 
safety of third party property jeopardized. The USAF conducted an 
assessment of the collective risk to people on land due to debris from 
the CRS-8 launch and has determined that the risks are about half the 
FAA's current \3\ regulatory limit of 30 x 10-6 
EC.
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    \3\ In 2014, the FAA proposed to update this requirement as 
explained in Changing the Collective Risk Limits for Launches and 
Reentries and Clarifying the Risk Limit Used to Establish Hazard 
Areas for Ships and Aircraft, Notice of Proposed Rulemaking, 79 FR 
42241 (July 21, 2014).
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    On September 25, 2006, the FAA issued part 417 to amend its 
commercial space transportation regulations governing the launch of 
expendable launch vehicles. The FAA requirements in part 417 have their 
genesis in USAF range safety requirements.
    In addition to the public risk criteria provided in Sec.  
417.107(b), flight hazard areas were a key element of the performance 
level requirements in subpart C of 417 to ensure the safety of people 
on waterborne vessels. Specifically, Sec.  417.223(a) states that ``a 
flight safety analysis must include 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

[[Page 28932]]

impact hazards. The risk management requirements of Sec.  417.205(a) 
apply.'' In addition to the performance level requirements of subpart C 
of part 417, the FAA included several appendices on flight safety 
analysis methods. Specifically, Appendix B to part 417, paragraph 
417.5(a) states that ``a launch operator must perform a launch site 
hazard area analysis that protects the public, aircraft, and ships from 
the hazardous activities in the vicinity of the launch site. The launch 
operator must evacuate and monitor each launch site hazard area to 
ensure compliance with Sec. Sec.  417.107(b)(2) and (b)(3).'' The 
methodology in Appendix B was designed to be consistent with USAF range 
safety requirements in 2006, and to ensure that the cumulative 
probability of impact to any ship would not exceed 1 x 10-5 
for any debris expected to exceed the kinetic energy or overpressure 
thresholds established by Sec.  417.107(c).
    At the time that part 417 was promulgated, safety experts at NASA 
\4\ believed that it would be desirable to apply collective risk \5\ 
management principles to ship safety by including persons in waterborne 
vessels in the EC calculation. However, the computational 
tools and input data available at that time made it impractical, and 
posed significant risks to launch operators,\6\ to quantify the 
EC contribution from people in waterborne vessels. 
Specifically, the means to survey ship traffic areas potentially 
threatened by launch debris were much more limited in the 2006 
timeframe as explained below. Accordingly, the Federal launch ranges 
and the FAA adopted the cumulative probability of impact as a surrogate 
for collective risk and relied on a relatively simplistic approach 
involving ship hazard areas. Thus, the FAA's current requirements allow 
launches to proceed with unquantified residual collective risks to 
people in waterborne vessels.
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    \4\ For example, the NASA Range Safety Policy requirements 
(NPR8715.5 dated July 8, 2005 in paragraph 3.2.6.2) stated that ``an 
assessment of risk to the public and workforce due to debris shall 
account for . . . all potential debris, generated intentionally or 
not, that could cause a casualty, including debris that could affect 
someone on the ground or on a waterborne vessel, or cause an 
aircraft accident (Requirement).''(emphasis added).
    \5\ Risk metrics account for both the probability and 
consequence of foreseeable events. In contrast to the relatively 
sophisticated casualty consequence models that must be used to 
compute individual and collective risks according to Sec.  
417.107(d), the FAA's current requirements restrict only the 
probability of impact on waterborne vessels with only simple 
threshold values to define what constitutes an ``impact.''
    \6\ The only known deaths related to launch operations at Cape 
Canaveral were five occupants of a helicopter that crashed at sea 
``shortly after 2 a.m., Saturday, April 7, [1984] while flying 
surface surveillance for the scheduled launch of a Trident 1 missile 
from the USS Georgia.'' See Air Force News Print Today (Apr. 8, 
2011).
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    Since 2006, when the part 417 requirements were promulgated, the 
capability to compute launch risks to people on waterborne vessels has 
improved greatly. The U.S. Coast Guard now requires in 33 CFR 164.46 
that waterborne vessels above a certain size operate a properly 
installed and approved Automatic Identification System (AIS), a ship 
and shore based broadcast system. The AIS, combined with other 
technological advances, now makes real-time ship information readily 
available, including the position, course, speed, ship size, identity, 
and cargo data. The real-time data on waterborne vessels provided by 
AIS and other advanced surveillance techniques, combined with advanced 
computer models, now enable valid estimates of the individual and 
collective risks to people on waterborne vessels to be made during a 
launch countdown.
    The FAA has assessed the input data and probabilistic casualty 
models that the U.S. Air Force at the 45th Space Wing (45th SW) will 
use to quantify individual and collective risks to people on waterborne 
vessels during the launch countdown for the CRS-8 mission. The FAA 
found that the 45th SW's public risk analyses use accurate data and 
scientific methods that are mathematically valid, with reasonably 
conservative assumptions applied in areas where significant uncertainty 
exists. For example, the 45th SW uses conservative estimates of the 
number of occupants on waterborne vessels by assuming that the number 
of persons on board equals the vessel's maximum capacity and that all 
occupants are on-deck, and thus exposed to debris impacts that might 
not otherwise pose a threat to people below deck. Additionally, the FAA 
performed independent analyses using alternative methods to estimate 
the casualty risks for multiple foreseeable scenarios involving debris 
impacts on various types of waterborne vessels in the vicinity of Cape 
Canaveral. The FAA found that large passenger vessels anywhere between 
the launch point and the first stage disposal zone can contribute 
significantly to the estimated EC from the CRS-8 launch. The 
FAA found that small boats (too small to have AIS required) located 
close to the launch point should not produce significant individual 
risks, given conditions expected in the vicinity of Cape Canaveral. 
Specifically, sufficient surveillance with other means (e.g., radar, 
and/or using Coast Guard ships or aerial assets) will be used to ensure 
individual risks comply with the FAA requirement in Sec.  
417.107(b)(2). In addition, Notices to Mariners will continue to be 
issued for the areas where the probability of impact on a ship would 
exceed 1 x 10-5, which is current practice at the ER, and 
required by Sec. Sec.  B417.3 and B417.11. Since the FAA's current 
requirements allow launches to proceed with unquantified residual 
collective risks to people in waterborne vessels, as long as the 
collective risk for people on land from each source of hazard (i.e., 
debris, toxics, or distant focusing overpressure) does not exceed 30 x 
10-6 EC, and because the launch will not exceed 
the 30 x 10-6 EC with the inclusion of persons on 
water borne vessels, the FAA finds that the Falcon 9 CRS-8 launch will 
not jeopardize public health and safety or safety of property, and 
waives 14 CFR 417.107(b)(3) and Appendix B to part 417, paragraph 
417.5(a)'s requirement not to initiate flight absent evacuation.
National Security and Foreign Policy Implications
    The USAF conducted an assessment of the risk to property on CCAFS, 
including assets used for national security space missions, and did not 
identify national security concerns. The FAA has identified no national 
security or foreign policy implications associated with granting this 
waiver.

ii. Public Interest

    The waiver is consistent with the public interest goals of Chapter 
509 and the 2013 National Space Transportation Policy. Three of the 
public policy goals of Chapter 509 are: (1) To promote economic growth 
and entrepreneurial activity through use of the space environment; (2) 
to encourage the United States private sector to provide launch and 
reentry vehicles and associated services; and (3) to facilitate the 
strengthening and expansion of the United States space transportation 
infrastructure to support the full range of United States space-related 
activities. See 51 U.S.C. 50901(b)(1), (2), (4). Commercial Space 
Transportation Licensing Regulations, Notice of Proposed Rulemaking, 62 
FR 13230 (Mar. 19, 1997). A successful application of public risk 
management for the protection of people in waterborne vessels has the 
potential for reducing launch costs. As it is a major procurer of 
launch services, reduced launch costs will be of direct benefit to the 
U.S. Government. It will also help to make the U.S. launch industry 
more competitive internationally. The 2013

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National Space Transportation Policy clearly identifies how 
strengthening U.S. competitiveness in the international launch market 
and improving the cost effectiveness of U.S. space transportation 
services are in the public interest: ``Maintaining an assured 
capability to meet United States Government needs, while also taking 
the necessary steps to strengthen U.S. competitiveness in the 
international commercial launch market, is important to ensuring that 
U.S. space transportation capabilities will be reliable, robust, safe, 
and affordable in the future. Among other steps, improving the cost 
effectiveness of U.S. space transportation services could help achieve 
this goal by allowing the United States Government to invest a greater 
share of its resources in other needs such as facilities modernization, 
technology advancement, scientific discovery, and national security. 
Further, a healthier, more competitive U.S. space transportation 
industry would facilitate new markets, encourage new industries, create 
high technology jobs, lead to greater economic growth and security, and 
would further the Nation's leadership role in space.'' SpaceX's 
proposal to apply collective risk management to people in waterborne 
vessels is in the public interest.

    Issued in Washington, DC, on April 8, 2016.
Kenneth Wong,
Commercial Space Transportation, Licensing and Evaluation Division 
Manager.
[FR Doc. 2016-09685 Filed 5-9-16; 8:45 am]
 BILLING CODE 4910-13-P
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