Are There Two Regimes for Commercial Space Transportation?

I received a question in response to Monday’s post that raised foundational issues: why are there are two regimes to address commercial space transportation? The writer referred to the United States Code and the Code of Federal Regulations. Not everyone who reads this blog is a lawyer, and middle school civics doesn’t really cover the administrative state, so this post will go over fundamentals. The quick answer is that there are not two regimes. The regulatory regime is a subset of the legislative regime. The regulatory regime carries out Congress’s legislative directions.

The mechanics of it all

We all learned in school that there are three branches of government. Congress, which is the legislative branch, writes the laws. The executive branch, headed by the President and consisting of all the agencies, carries out the laws. And the judiciary tells the first two if they got anything wrong when someone complains. Things are, of course, more complicated than that. Continue reading


The Only Thing Worse than Ambiguity: Clarity.

I’ve worked on a lot of regulations, and it seems sometimes that the only thing people hate more than vague requirements are clear ones. And vice versa.

The world offers many opportunities to be dissatisfied. Regulations are no exception, and provide the double-hit of being difficult whether they are ambiguous and flexible performance standards or prescriptively clear. Performance standards, regulations couched as flexible, open-ended standards that accommodate a variety of technological solutions, may leave a hapless regulated entity in the dark as to what an agency requires. After all, as many have noted, the ultimate performance standard consists of the admonition “Be safe.” On the other hand, if an agency starts to issue regulations that spell out prescriptive design solutions as the answer to a safety concern, the regulations lose their flexibility even as the affected industry learns precisely what the agency requires of it. But it is not necessarily the performance standards themselves that lack sufficient specificity.

A lot of the time, it’s not the standard that’s the problem, but the demonstration. Applicants for authorizations, whether for a launch license or aircraft certification, must demonstrate how they satisfy the FAA’s regulations.   If an applicant must satisfy a performance standard, the applicant may have to show the agency a lot more than if he only needs to run through a very specific checklist. If faced with a checklist, however, the applicant will have lost flexibility in designing his vehicle.

Examples of Performance Standards

The human space flight regulations in 14 C.F.R. part 460 are very performance based. For example, section 460.5, Continue reading


Space Support Vehicles

In 2015, Congress passed the Commercial Space Launch Competitiveness Act, which charged the Comptroller General, who heads up the Government Accountability Office (GAO), with preparing a report on the use of space support vehicle services within the commercial space industry. The act may be found at . Congress required that the report address the extent to which launch operators rely on such services, the statutory, regulatory, and market barriers to the use of such services, and any recommendations for legislative or regulatory action that might be needed to reduce barriers “if such use is a requirement of the industry.” In an explanatory committee report accompanying last year’s bill for the SPACE Act, the House explained that it wanted more information to assist with legislative efforts for the safe use of experimental aircraft in support of U.S. commercial space flight activities. This post looks at the current state of play on this matter.

There are two important things to understand about space support vehicles. The first is that they come in several varieties—some are high performance aircraft, others are aircraft that are part of a launch system, and others are rocket-powered vehicles with wings. The latter two varieties tend to get lumped together and characterized as “hybrids,” meaning they share characteristics of both aircraft and launch vehicles. The second important thing to understand about space support vehicles is that they don’t exist.   They have been proposed as a new legal category to be regulated under the statute and regulations governing commercial space transportation rather than under the laws that apply to aviation. They have the characteristics of both aircraft and launch vehicles, and, to some, the commercial space regulations appear preferable to the aviation requirements.

Why space support vehicles might be an attractive new legal category

A little background may help. The Federal Aviation Administration regulates air and space under two different legal regimes. The better known regime resides in what is popularly referred to as the Federal Aviation Act, in Title 49 of the United States Code. It applies to aviation.   Space falls under the Commercial Space Launch Act, which is located in Title 51, chapter 509. Chapter 509 applies to space transportation to and from Earth, and it requires the Department of Transportation, and, through delegations, the Federal Aviation Administration, to authorize and regulate non-federal launch of a launch vehicle, reentry of a reentry vehicle, and the operation of launch and reentry sites. Unlike Title 49, which requires the certification of aircraft, Chapter 509 does not require the certification of launch or reentry vehicles.

So-called “space support vehicle” operators currently fall under the requirements of the aviation laws and regulations of Title 49. This is because they operate aircraft. Some operate high-performance aircraft, often former military craft that operate under experimental certificates, and are thus prohibited by the FAA’s aviation regulations from carrying persons or property for compensation or hire. Because high-performance aircraft can mimic some of the characteristics of space flight such as weightlessness, they could, if they were not barred from receiving compensation, provide training for crew and space flight participants (people who are usually called passengers in other industries). Other space support vehicle operators are launch operators, and they operate carrier aircraft as the first stage of their launch systems. A carrier aircraft can carry a rocket-powered vehicle to tens of thousands of feet in elevation, drop the rocket-powered vehicle, and then get out of the way so the rocket-powered vehicle may ignite and carry on as an ordinary rocket. Virgin Galactic’s WhiteKnightTwo carrier aircraft provides a good example of a carrier aircraft. When launch occurs, the FAA treats the operation of both stages, the carrier aircraft and the rocket, as a launch requiring a launch license. When not carrying aloft a rocket for ignition, the carrier aircraft falls under Title 49 for regulatory oversight. A final vehicle that could serve as a candidate for status as a space support vehicle would be one that was both winged and rocket powered. For examples, we might look to XCOR’s Lynx and Virgin’s SpaceShipTwo. The last two categories are frequently referred to as hybrids due to the fact that they can operate as both aircraft and as launch vehicles.

Title 49 and its implementing regulations contain other restrictions on and requirements for the production and operation of aircraft. These restrictions and requirements do not apply to launch or reentry vehicles. FAA aviation regulations prohibit the carriage of persons or property for compensation or hire on an experimental aircraft. 14 C.F.R. § 91.319(a). FAA regulations also require type certification of an aircraft’s design and a production certificate to build the aircraft. A host of other requirements apply as well, and combined may cost a manufacturer millions of dollars in regulatory compliance.

The space regulations look easier to satisfy, at least at first. An operator need only obtain a license to launch under 14 C.F.R. ch. III. It need not obtain certification for its launch or reentry vehicle, or for the production of more. When operating under a launch or reentry license, an operator may receive compensation. (When operating under a space experimental permit, an operator may not receive compensation, but that is not at issue in this discussion.) To further ease the regulatory burden, Chapter 509 requires that the FAA make a decision about whether to issue a license within 180 days of receiving an application complete enough to start review. Like any regulatory system, however, the commercial space regulations also impose limits and require analysis and testing. An operator must perform a risk analysis, satisfy design and test requirements, and prepare any applicable analyses necessary for system safety analysis.

Nonetheless, the commercial space regulations retain their appeal. If high-performance aircraft were regulated under Title 51 rather than under Title 49, the operators would be able to charge money to carry persons on board. Manufacturers of hybrids face not only the “compensation or hire” restriction, but certification requirements as well. If a hybrid operator has a functioning aircraft in its carrier aircraft/first stage, the operator may wish to use it to train its own crew or space flight participants, carry out maintenance flights with it, or otherwise employ it in non-launch flight. Under current law, it may conduct such activities, but not receive compensation for them. Accordingly, were a space flight participant to pay for a week of training and a launch to space, the strict prohibitions of the aviation regulations might not allow the operator of the carrier aircraft to receive compensation for the aviation portion of the experience. Additionally, a hybrid operator may not be planning the production numbers for its unique craft that an aircraft manufacturer can hope to achieve. This means that the hybrid operator would not be able to amortize its certification costs across a fleet of its carrier aircraft. It might only build a few, thus making compliance with the FAA’s aircraft certification requirements far more costly than under the economics that apply to aviation.

What to expect

We can look for the GAO report to address the questions Congress raised. No launch operator yet provides actual launch or reentry services to space flight participants, so it will be interesting to see how and whether their business models propose to rely on space support vehicles, whether for training or other purposes. Some of the regulatory barriers have been mentioned here, such as the prohibition on receiving compensation for the carriage of persons in experimental aircraft and the high costs of regulatory compliance. Hopefully, the GAO report will provide some insight into how high those costs go. A quick search of public records unearthed only the figures shared by D. Johnson in The Cost of Certification (2012): Finally, the GAO report is expected to produce recommendations. Will the GAO suggest regulating space support vehicles under the more purportedly lenient Title 51? If so, how will it ensure that those flights are related to genuine space activities? Or, will it suggest merely removing the restriction on compensation and hire from carrier and high performance aircraft when operated in support of space flight? Might exemptions serve as substitutes for legislative or regulatory changes? Or do exemptions create too much uncertainty? The report is due late November, so we shall know soon enough.