How to Learn about the FAA’s Risk Criteria and Calculations

I received a question from someone interested in what literature might be available for understanding the FAA’s risk criteria for expected casualties (Ec —pronounced “E sub c”), and how Ec is calculated.

One of the best ways to understand an agency’s regulations is to read the two preambles that accompany the regulations. You can find preambles in the Federal Register. You will find the FAA’s commercial space transportation regulations at Title 14 of the Code of Federal Regulations, Chapter III.  Chapter III applies to FAA licensing, permitting, and the regulation of launch and reentry vehicles and the operation of launch and reentry sites, and contains parts 400 through 460. Part 420 contains the requirements for a licensed launch site operator. Part 460 applies to human space flight. Other parts apply to expendable launch vehicles, reentry, enforcement, and financial responsibility.

An explanatory preamble accompanies an agency’s proposed new rules. Another preamble, which also discusses any comments the agency received from the public, accompanies the agency’s release of its final rules. For Ec, there are now a number of preambles that help to understand those calculations.

If you just want to understand what Ec is, the discussions of the risk requirements in part 420 for launch sites—aka spaceports—are a great place to start because they discuss two simplified versions of the calculations and thus make a good primer for newbies.  The notice of proposed rulemaking for 14 C.F.R. part 420 is here.  The final rule and disposition of comments is here.  Do be aware that these are early versions of the FAA’s risk requirements, and the FAA made  changes later, and apply to persons applying for a license to operate a launch site. Launch operators must look elsewhere.

A launch operator of expendable launch vehicles (ELVs) will be more interested in the risk requirements of 14 C.F.R. part 417, and an operator of a reentry vehicle, including reusable launch vehicles (RLVs), will find its risk criteria in parts 431 and 435.

The FAA recently changed its risk requirements for ELVs, RLVs and spaceports.  The agency proposed to do so in this notice of proposed rulemaking.  It released the final version of the new regulations and a discussion of the comments it received in this final rule.   When you are reading recent documents such as these, note the references to earlier notices of proposed rulemaking and final rules.  You may find discussions there that explain something the new regulations don’t address.

Practitioner’s Note:  When referring to the FAA’s space regulations in their entirety, do refer to 14 C.F.R. ch. III.  Do not refer to them as 14 C.F.R. part 400.  Part 400 only contains two sections, and there are many more parts.

 

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Comments to the FAA on an Enhanced Payload Review

I submitted the following comments to the FAA on Monday, September 12, 2016. The FAA wanted to know whether the public had any concerns it should pass along to the members of its advisory committee regarding Representative Bridenstine’s (R-Okla.) proposal to enhanced the FAA’s oversight of payloads on launches and reentries licensed by the FAA.

I am providing the comments here because I will be discussing each of the issues in greater detail over the coming months, and this serves as a general introduction to the issues.

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I am writing in response to the FAA’s notice of August 24, 2016, requesting comments on a legislative initiative for an enhanced FAA payload review. The following comments address why such a change is not necessary, and also make more specific recommendations. First, it is not legally correct that Article VI of the Outer Space Treaty of 1967 presents a barrier to commercial activity, notwithstanding views to the contrary. Second, the proposal to use the FAA’s payload review lacks the specificity necessary for adequate notice to the regulated community and appears to address far too broad an array of possible activity. This raises both due process concerns and may constitute too broad a delegation of Congress’s legislative authority to the executive branch. Third, this initiative provides an opportunity to clarify what treaty provisions apply to the commercial sector so as to avoid unintended and costly burdens. Finally, the draft raises a question as to whether it would supplement or supplant the requirements of the Administrative Procedure Act.

Article VI is not a barrier to U.S. commercial activity

Article VI of the Outer Space Treaty of 1967 states, in relevant part: Continue reading

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Spaceports as Contractors

Spaceports are contractors. Not all spaceports are always contractors in all respects, but a lot of them are a lot of the time. If a spaceport is a contractor it has to enter into agreements with the launch operators launching from its site that neither the spaceport nor the launch operator will bring claims for damages against each other for harm arising out of licensed or permitted activity.

Under the Commercial Space Launch Act, 51 U.S.C. ch. 509, and its implementing financial responsibility regulations,14 C.F.R. part 440, a launch licensee or permittee must enter into reciprocal waivers of claims with each of its contractors involved in launch or reentry services. Chapter 509 defines launch and reentry services as activities involved in the preparation of a launch or reentry vehicle, payload, crew (including crew training), government astronaut, or space flight participant for launch or reentry; and the conduct of a launch or reentry.

Spaceports—which Chapter 509 terms launch and reentry sites, but I’ll use the vernacular here—satisfy the definition of a contractor under 14 C.F.R. § 440.3.  That section defines contractors to mean those entities that are involved at any level, directly or indirectly, in licensed or permitted activities, and include suppliers of property and services. Spaceports provide property and services, including launch pads, runways and launch services. Some spaceport business models allow for providing support services for payload integration, fueling, hot fire testing, and range safety. The FAA’s regulations in part 420 require spaceports that are launch site operators to coordinate their customers’ hazardous activities. A number of these coordination activities, including the scheduling of operations and notifications, may constitute launch services.

The financial responsibility requirements apply both to commercial and state spaceports. Under Chapter 509, the only spaceports that the FAA does not license are those operated by the federal government. Accordingly, both commercial and state spaceports need to be aware of their obligations under Chapter 509 and the FAA’s financial responsibility regulations.

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Codification, Re-Codification, and Alternate Future History

Sometimes when you are reading science fiction you find that the story’s future is in our past.   What could have happened clearly didn’t because that future is over. The emotionally satisfying convention here is to treat the story as an alternate future history, an alternate timeline. This way we can continue to enjoy classics like Robert Heinlein’s Door into Summer, despite the lack of cold sleep in 1970.

A lot of people use the easy method to determine whether the writer must have been describing a time line that branched off from our own. They will notice—without error—that the ‘90’s are over. There are other, more subtle ways to catch on to the creation of invisible timelines. Space law can help you out here.

Michael Flynn’s Firestar series contains those kinds of clues. The books are set in the near-future for the time he wrote them; but in 2016, we are looking at the 1990’s in the rearview mirror. The books are a rollicking read, a bit of a soap opera, and sprawl from the New Jersey suburbs to orbital construction. The series tells the tale of a commercial titan who kickstarts the industrialization of space out of fear that an asteroid might hit Earth. This being fiction, it’s a good thing she does, because….. Let’s just say it’s good someone’s getting ready for the sky to fall.

When I read the books, I’d been working at the FAA for years, helping draft regulations to implement what is popularly Continue reading

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