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As noted in the NPRM, "gate to gate" evolved out of an industry desire for broad license coverage, and this approach was the FAA’s official position with respect to the scope of its licenses. Other government sectors, including NASA, have criticized this approach as overly broad. Civilian Space Authorization Act, Fiscal Years 1998 and 1999, H. Rep. 65, 51 105th Cong.,1st Sess. (Apr. 21, 1997). In 1995, House Science Committee Report No. 104-233, accompanying H.R. 2043, the NASA Authorization Act for Fiscal Year 1996, noted that members of Congress view with concern this approach to covering all licensee activities within the gates of a federal range, and considered it too broad. Although recognizing that the report language does not carry the force and effect of law, the FAA is concerned that launch operators might be pursuing their pre-launch activities in reliance on an indemnification that must be enacted by Congress and that may or may not be available from Congress. This prompted the FAA in its NPRM to revisit the issue of the scope of a license and, thus, necessarily, of the definition of "launch."
Lockheed Martin questioned the FAA’s concern over the possibility that Congress would refuse to vote for indemnification for all of a launch operator’s activities at a federal launch range. As stated in the NPRM, while the FAA recognizes that the report language of concern does not have the effect of law, see, e.g., Public Employees Retirement Systems of Ohio v. Betts, 492 U.S. 158, 168, 109 S. Ct. 2854, 2862 (1989), it nonetheless remains a fact that Congress does play a role in deciding whether to provide "coverage" for damages in excess of the FAA’s financial responsibility requirements. In Betts, the Court noted that it "has observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute." Id. However, in this funding context, the FAA does not believe that it behooves either the FAA or licensed launch operators to ignore these warnings. That is the source of the FAA’s concern. Additionally, the fact that 1997 also produced report language recommending a more narrow definition indicates to the FAA, as it should to industry, that the better course is to rely on a definition grounded in the Act rather than on fluctuating Congressional report language.
End of launch
The FAA notes that the end of launch may be expressed both in terms of flight activity and ground operations. For purposes of flight, the FAA will continue to define the end of a launch as the point after payload separation when the last action occurs over which a licensee has direct or indirect control over the launch vehicle. For a liquid-fueled stage, that point may be when any remaining fuel is emptied from the upper stage, the vehicle propellant and gas tanks are vented and other stored energy is released. For solid rocket motors, that point may arrive when the upper stage fuel is expended or the stage is inert, and the payload is released. For purposes of ground operations, launch no longer ends with the cessation of supporting ground operations but when the vehicle leaves the surface.
With respect to flight, others apply different definitions to the end of launch. The most recent House Committee Report, H.R. Rep. No. 347, 105th Cong., 1st Sess., 22 (1997), suggests that launch ends when a payload is placed into orbit or in its planned trajectory in outer space. The 45th Space Wing considers a launch complete when all hazardous activities are secured and, for purposes of flight safety, upon orbital insertion. NPRM, 62 FR at 13223. Orbital insertion takes place when a launch vehicle achieves orbital velocity or when its instantaneous impact point leaves the earth. In other words, orbital insertion is achieved when a launch vehicle is moving horizontally to the earth’s surface sufficiently fast enough, given its altitude, to counteract the effects of the earth’s gravity. The FAA believes that although defining launch to end at orbital insertion may make sense from a federal range "flight termination" perspective, such a definition would halt FAA oversight of certain aspects of launch too soon for safety. For example, damage to other orbiting material may still ensue as the result of activities subsequent to orbital insertion. Absent a licensee taking appropriate measures, risk exists of the possible collision of a launch vehicle or its components with other objects in space. Additionally, dangerous orbital debris might be generated. Accordingly, in the interests of safety, the FAA will retain its current practice of defining the cessation of launch.
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Commercial Space Transportation Licensing Regulations(14)
