Today’s post will be remarkable for its brevity due to pecan tarts, geese, finding a festive bag for a large present, and other assorted activities related to, arising out of, and associated with the holidays.
Nonetheless, there is something of interest that came out in today’s Federal Register. NASA’s Semiannual Regulatory Agenda appeared in today’s Federal Register and showcases a number of changes to the Federal Acquisition Regulations that it administers with the Department of Defense and the General Services Administration. The Department of Transportation, which houses the Federal Aviation Administration, also published its agenda. As DOT noted:
The Regulatory Agenda is a semiannual summary of all current and projected rulemakings, reviews of existing regulations, and completed actions of the Department. The intent of the Agenda is to provide the public with information about the Department of Transportation’s regulatory activity planned for the next 12 months. It is expected that this information will enable the public to more effectively participate in the Department’s regulatory process. The public is also invited to submit comments on any aspect of this Agenda.
I participated in a lively debate last week at the International Institute of Space Law’s Galloway Symposium on Critical Issues in Space Law. The other panelists were my friends and colleagues Professor Diane Howard of Embry-Riddle Aeronautical University’s Commercial Space Operations Program and Professor Matthew Schaeffer of the University of Nebraska’s Space and Telecom Law Program. We discussed whether the U.S. complies with the requirement in Article VI of the Outer Space Treaty that each country authorize and continuously supervise the activities of non-governmental entities in outer space. In posts here and in various other fora I’ve noted that current law allows U.S. private entities to operate in outer space without authorization or supervision because the treaty is not self-executing. The question at the Galloway was slightly different: is the United States itself in compliance with Article VI? I said yes because the treaty leaves to each country the decisions about how to comply with its rather ambiguous terms. Continue reading →
Merry Christmas, Happy Hanukkah, and Happy Holidays!
For those who like to give books as gifts, and for those who want one for their list, I highly recommend the following choices. Admittedly, these books contain no space law, but they are each a winning combination of fun, harrowing, and heartwarming, just right for the season.
Dave Freer’s fantasy novel Changeling Island, a Dragon award nominee, is a modern version of all those books we loved as kids. There’s a sense of community and responsibility for one’s actions and a hero we can root for, but now there are cell phones and divorced parents.
From the blurb: Tim Ryan can’t shake the feeling that he is different from other teens, and not in a good way. For one thing, he seems to have his own personal poltergeist that causes fires and sets him up to be arrested for shoplifting.
As a result Tim has been sent to live on a rundown farm on a remote island off the coast of Australia with his crazy grandmother, a woman who seems to talk to the local spirits, and who refuses to cushion Tim from facing his difficulties. But he’s been exiled to an island alive with ancient magic—land magic that Tim can feel in his bones, and sea magic that runs in his blood. If Tim can face down the danger from drug runners, sea storms, and the deadly threat of a seal woman who wishes to steal him away for a lingering death in the land of Faery, he may be able to claim the mysterious changeling heritage that is his birthright.
Sarah A. Hoyt’s Prometheus winning science fiction novel, Darkship Thieves, is a rip-roaring, action packed romp through the solar system, from an Earth ruled by bio-lords to a secret colony on a mysterious asteroid.
From the blurb: Athena Hera Sinistra never wanted to go to space. Never wanted see the eerie glow of the Powerpods. Never wanted to visit Circum Terra. Never had any interest in finding out the truth about the DarkShips. You always get what you don’t ask for. Which must have been why she woke up in the dark of shipnight, within the greater night of space in her father’s space cruiser, knowing that there was a stranger in her room. In a short time, after taking out the stranger—who turned out to be one of her father’s bodyguards up to no good, she was hurtling away from the ship in a lifeboat to get help. But what she got instead would be the adventure of a lifetime—if she managed to survive…
Finally, J.M. Ney-Grimm’s fantasy Winter Glory is a glittering tale of two people, who once loved each other, traveling over the river and through the woods. In an icy wonderland they face both danger and the consequences of their own choices. Ney-Grimm has a fresh and elegant writing style that captures the epic sense one wants in fantasy, but she also tells a story with a strong heart. I gave my sister this book for Christmas last year I loved it so much.
From the blurb: In the cold, forested North-lands, redolent with the aroma of pine, shrouded in snow, and prowled by ice tigers and trolls, Ivvar seeks only to meet his newborn great granddaughter. Traversing the wilderness toward the infant’s home camp, Ivvar must face the woman he once cherished and an ancient scourge of the chilly woodlands in a complicated dance of love and death.
Ivvar’s second chance at happiness – and his life – hang in the balance.
The FAA’s Office of the Chief Counsel issues legal interpretations when a conflict arises between regulations or between regulations and a statute. If there truly is an irreconcilable conflict between a statute and a regulation, the statute wins, of course, because agency-issued regulations must be issued in accordance with law. We find the law in the Congressionally enacted statute.
A Launch Does not Require a Special Flight Authorization to Exceed Mach 1
In 2013, the Regulations Division of the Office of the Chief Counsel issued a legal interpretation about noise, in which it stated that SpaceShipTwo did not need to obtain a special flight authorization to exceed Mach 1 under 14 C.F.R. § 91.817. That aviation regulation, section 91.817 ,provides:
(a) No person may operate a civil aircraft in the United States at a true flight Mach number greater than 1 except in compliance with conditions and limitations in an authorization to exceed Mach 1 issued to the operator under appendix B of this part.
Rockets are fast. Rockets can exceed Mach 1. Exceeding Mach 1 too close to houses can result in noise and even broken windows. The rocket SpaceShipTwo, like its predecessor SpaceShipOne, is carried to about 50,000 feet by a carrier aircraft called the White Knight. The carrier aircraft drops the rocket, gets out of the way, and the rocket ignites for its journey to 100 kilometers and back again. It can exceed Mach 1.
But rockets are not regulated as aircraft, even though they meet the definition of aircraft. Rather than regulating rockets or other launch vehicles under the Federal Aviation Act, the FAA regulates rockets under the Commercial Space Launch Act (CSLA), so different regulations apply. As noted in the legal interpretation, although other laws may apply to the launch of a launch vehicle, an operator need not obtain other approvals for that launch.
Except as provided in this chapter, a person is not required to obtain from an executive agency a license, approval, waiver or exemption to launch a launch vehicle or operate a launch site or reentry site, or to reenter a reentry vehicle.
Because section 91.817’s requirement for a special flight authorization constitutes an approval, a person conducting a licensed launch need not obtain that additional approval for the launch.
The legal interpretation also explains that an earlier decision to require SpaceShipOne to obtain approval for an aircraft to exceed Mach 1 arose out of the legal error of applying an experimental airworthiness certificate to an activity—namely, the launch of SpaceShipOne and its carrier aircraft—that should have only been conducted under a space license. Because of the presence of the carrier aircraft, and because SpaceShipOne sometimes operated as an aircraft rather than always employing its rocket engines, the FAA had granted the rocket’s operator both a launch license and an experimental airworthiness certificate. This decision to issue dual aviation and space authorizations may have led to the decision to require the Mach 1 authorization. Regardless, in response, Congress amended the CSLA in section 50904(d) to emphasize that when operations took place under the CSLA only a single license or permit could be in effect, just as section 50919(a) already said. The legal interpretation clarifies all of this.
Don’t Break the Windows
Because the grant of a launch license is a major federal action under the National Environmental Policy Act, the FAA must conduct environmental assessments or impact statements before issuing a launch license. In these reviews the agency addresses noise issues. One of the things I learned during my time at the FAA was that people who live close to airports care about noise. They care a lot. Noise can and will serve as a catalyst for the populace to rise up in indignation, march on Washington, and demand regulation. This means that escaping authorization under 91.817 does not provide carte blanche to go popping supersonic wheelies. I don’t know if Rudy Giuliani’s broken window theory applies here, but there are other regulations that may apply to supersonic activities. Be careful out there.
This is not a post about Marie Kondo’s system of getting rid of the clutter in your life. This post addresses a legal point in a New York Times article about an innovator in Japan who wants to address a different kind of clutter, orbital debris:
Mitsunobu Okada, aspires to be more than an ordinary garbageman. Schoolroom pictures of the planets decorate the door to the meeting room. Satellite mock-ups occupy a corner. Mr. Okada greets guests in a dark blue T-shirt emblazoned with his company’s slogan: Space Sweepers.
Where others are looking at tethers, robotic arms, space tugs, laser brooms, and other exotica, Mr. Okada plans to use something far more simple and light weight to trap space debris: glue. Continue reading →