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In its NPRM, the FAA considered three options to defining launch and the scope of a launch license and, by necessary implication, possible "indemnification" for government property and third party damages arising out of a launch. The FAA noted that its approach of licensing the activities of a launch operator within the gates of a federal launch range, commonly referred to as "gate to gate," had been criticized as too broad. The criticism came from Congress through non-binding report language; however, because Congress would ultimately prove the source of funding for any possible "indemnification," the FAA was concerned that "gate to gate" might eventually mislead industry into inappropriately relying on the government for money that was not available. Congress might deny funding on the grounds that pre-flight preparation did not constitute part of launch under 49 U.S.C. Subtitle IX, ch. 701. Accordingly, the FAA considered two approaches to narrowing its definition of launch. It considered, but rejected, defining launch as commencing with ignition. Instead, it proposed to define launch as commencing with the arrival of a launch vehicle at a federal launch range from which flight would occur. The FAA also proposed in its NPRM to clarify when launch ended. With flight, launch ends when the last action over which a licensee has direct control is performed. As proposed in the NPRM, ground operations would no longer be deemed part of launch when an expendable launch vehicle left the ground. With the changes to the definition brought about by the Commercial Space Act of 1998, the FAA revises the definition to include activities involved in the preparation of a launch vehicle for launch, when those activities take place at a launch site in the United States. The FAA now adopts those changes.
In reaching its final decision regarding its interpretation of launch, the FAA considered a number of factors. The statutory definition provided the first line of inquiry. The FAA also took into account the commenters’ desire for a consistent and broad interpretation. Ease of administration played a role as well. In the end, the change in the level of risk proved determinative as to where in the course of preparation for flight the FAA would deem launch to commence.
The FAA received comments on its proposed revisions. Boeing Commercial Space Company (Boeing) voiced its concern with the FAA’s proposed definition of launch, opposing the inclusion of ground operations out of concern for the precedent such a definition might establish for launches conducted by Sea Launch, which proposes to launch from the ocean, and in which Boeing participates as a partner. Boeing believes that although some hazardous activities are part of launch preparation, these activities do not "in themselves constitute uniquely hazardous events which should be covered in the scope of a launch license. Such activities should [be] and are regulated by existing hazardous material and operations regulations that are applicable to industry at large." Boeing at 1. According to Boeing, the purpose of the Act was to define the scope of launch "so as to cover those operations which directly placed the general public at risk." Boeing at 1. Where more innovative launch technologies are employed, such as that contemplated by Sea Launch, Boeing expects that launch will be defined consistently with this purpose.
Hughes Electronics (Hughes) requested that the FAA clarify whether a launch vehicle’s payload is part of launch site activities in order for Hughes to determine when the possible indemnification provisions of the Act apply. Hughes proposed that indemnification provisions of the FAA’s rules be clarified to apply to a payload and its components, or that a payload be included within the definition of launch vehicle. Hughes asked, in essence, that the FAA define launch, for purposes of including payload activities, to commence with the arrival of a payload at the launch site. Launch would end, under Hughes’ proposal, either after a defined period of time or after such time as a launch vehicle could cause a payload accident, whichever came later. Hughes did not elaborate on the implementation of its proposals.
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Commercial Space Transportation Licensing Regulations(6)
