Effect of New Regulatory Freeze on FAA Space Rules

This past Tuesday’s Federal Register contains a Memorandum for the Heads of Executive Agencies and Departments; Regulatory Freeze Pending Review, 82 Fed. Reg. 8346 (Jan. 24, 2017). In it, the President’s Chief of Staff directs agency heads that, unless there is an emergency or other urgent circumstances, or a judicial or statutory deadline applies, no agency should send a regulation to the Federal Register until a department or agency head appointed or designated by President Trump reviews and approves the regulation. The agency head may delegate this power of review and approval to another agency head appointed or designated by the president. This restrictions in this Memorandum apply to notices of inquiry, advanced notices of proposed rulemaking, notices of proposed rulemaking, final rules, and any agency statement of general and future effect that “sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”

Additionally, and as consistent with applicable law:

  • An agency must immediately withdraw any regulation it has already sent to the Federal Register but which has not yet been published so that it may undergo the review and approval described above.
  • An agency must postpone by 60 days the effective date of any regulation already published so that the rule may undergo review for questions of fact, law, and policy. If the rule raises no questions of fact, law, or policy, the Memorandum states that no further action need be taken, but if a rule raises any such questions, agencies must notify and consult with the Office of Management and Budget.

What does all this mean in practice for the FAA’s space regulations?

Space Regulations: As noted in an earlier post, the FAA’s not-always-reliable Unified Agenda list should tell us what the FAA intends in the way of rulemaking. Going by the Unified Agenda, we see that the FAA released an NPRM in June 2016 on procedural changes and an expansion in the availability of equivalent level of safety determinations as relief from FAA requirements. Under the requirement that the FAA publish its final rules within sixteen months of the close of the comment period, the final rule is not due until 2018, so will likely not be affected by this week’s Memorandum.

The other space rulemaking in the FAA’s queue applies to orbital debris. The agenda states that the NPRM will be released in July 2017, which is when the public would be able to comment on it. The abstract states that “[t]his rulemaking would update current orbital debris mitigation regulations to more closely align them with the U.S. Government Orbital Debris Mitigation Standard Practices and to update the current launch collision avoidance regulations to match U.S. Strategic Command (USSTRATCOM) practice.” It seems possible that this week’s Memorandum will still apply this summer.

Legal Interpretations: The one question I have about the applicability of the Memorandum regards FAA legal interpretations from the FAA’s Office of the Chief Counsel. Members of the public, including regulated entities such as launch operators, may write to the FAA’s attorneys and ask how an unclear regulation applies to his or her particular circumstance. On the one hand, the Memorandum defines regulations to include “interpretations of a statutory or regulatory issue.” On the other hand, it must be of general applicability and future effect.

Typically, a legal interpretation applies to one person’s particular circumstances. This suggests that they are not of general applicability. However, they do have precedential value, which imbues them with some general effect. Moreover, especially when the interpretation addresses confusing or conflicting regulations, it can have general effect for anyone in a situation similar to that of the person who asked for the legal interpretation initially. For example, as discussed here, when a launch operator wanted to know if it needed a license to operate a launch site, it requested a legal interpretation. That interpretation still provides guidance to other launch operators who want to temporarily set up shop to launch their rockets. Thus, interpretations, even though they appear on their face to apply individually rather than generally, may be covered by this Memorandum as well.

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Space Activity: Lunar Brewing

But will the FAA give these fellows a positive payload determination?  Will they even ask for one?  Would you?

Thinking about Article VI’s requirement that countries supervise and authorize the activities of their nationals in outer space always raises the question of which activities need to be authorized and supervised.  I hadn’t thought of this one.  I hope they get a spot on board.

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The FAA Requires both Positive Safety Controls and Risk Caps

When a launch operator seeks a waiver from the FAA for a requirement governing the flight termination system (FTS) on its launch vehicle, the operator should not look to satisfaction of the FAA’s risk requirements as a justification for the FTS waiver it requests. Instead, the operator should address how its proposed design or test change provides an equivalent level of safety or will not otherwise jeopardize public health and safety.

Background: The safety requirements of part 417 of Title 14 of the Code of Federal Regulations apply to the launch of expendable launch vehicles.  The requirements consist of, among other things, positive safety controls and caps on acceptable risk.

The positive safety controls provide design and test requirements for the vehicle’s flight safety system, which is usually an FTS. If an expendable launch vehicle starts going off course, launch safety personnel destroy the rocket by transmitting a signal to the on-board flight termination system. In the U.S. launches generally take place from the coasts so the debris from a destroyed launch vehicle stage falls in an ocean. Because of the destructive power of a launch vehicle, especially early in flight when fully fueled, both segments of the flight safety system must work. Accordingly, the FAA’s requirements govern the ground-based command control system as well as the destruct—or termination—system on board the rocket.

The FAA’s risk requirements limit the collective, public risk attributable to a launch to 1 x 10-4 for debris, toxic releases and far field blast overpressure under 14 C.F.R. § 417.107(b). Individual risk may not exceed 1 x 10-6 for each hazard.

The requirements are not interchangeable. The risk caps and the positive controls are separate requirements, and, as is evident in section 417.107, both requirements apply. Historically, as discussed here at 63938, satisfaction of the risk requirements may have been used by the federal launch ranges to justify waiving a particular requirement governing a flight termination system’s design or testing. In the early days of FAA regulation of commercial space transportation, prior to codification of part 417, the FAA relied greatly on the U.S. Air Force, Army, and NASA federal launch ranges for safety oversight. When the time came , the FAA codified a large part of the ranges’ safety requirements as part 417 of its own rules, and the FAA and the Air Force strove to achieve common requirements for consistency, as discussed here at pages 63925-26. However, the FAA made the decision to require both positive safety controls, including in the design and test requirements for a flight termination system, and risk caps. Accordingly, just as I may not get out of paying my federal taxes on the grounds that I paid my state taxes, a launch operator may not avoid satisfying a flight termination system requirement merely because its launch satisfies the FAA’s risk requirements. If it needs to request a waiver from the FAA it must justify the waiver by addressing the requirement it seeks waived, not by relying on risk analysis.

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Launcher One Environmental Assessment Available for Public Comment

The FAA yesterday released a notice of availability of a draft environmental assessment for licensing LauncherOne’s launches.  As described by the FAA,

The FAA is evaluating LauncherOne LLC’s (L1’s) proposal to launch the LauncherOne at the Mojave Air and Space Port in Kern County, California, for purposes of transporting small satellites into a variety of Low Earth Orbits. The launch system consists of the rocket (LauncherOne) and a carrier aircraft (Boeing 747). To operate LauncherOne at the Mojave Air and Space Port, L1 must obtain a launch license from the FAA. Issuing a license is considered a major Federal action subject to environmental review under NEPA[, the National Environmental Policy Act].
There are interesting points in this notice:
Orbital launches:  The notice shows that the FAA is contemplating expanding the scope of the spaceport license for Mojave Air and Spaceport to include orbital launches.
Reusability:  The FAA characterizes L1’s launch system as reusable.
Scope of license:  Although the notice reads as if the space license would only cover the rocket and not the aircraft, one would expect, as with past launch systems consisting of a carrier aircraft and a rocket, the FAA’s launch license to cover both the flight of the 747 and the rocket on the days when L1 fires the rocket.  If L1 flies the 747 without the rocket attached or even conducts captive carriage tests with the rocket attached, the activity would take place under the aviation regulations, not the space regulations.  However, we may expect the FAA space license to apply to the flight of both the 747 and the rocket based on its approach to licensing Orbital Science’s (now Orbital ATK’s) launch system, which consisted of a Pegasus rocket and an L-1011 carrier aircraft, and Scaled Composites’ White Knights One and Two carrier aircraft and its SpaceShip rockets.
The draft environmental assessment itself may be found here, and comments are due February 13, 2017.
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Temporary Spaceports

The last post showed that a launch operator, even if launching from a site it doesn’t own, might not need a license to operate a launch site if its presence at the site is temporary. This post addresses the launch site operator.

Suppose you are an airport with no interest in the lengthy and costly process of obtaining a license from the Federal Aviation Administration to operate a launch site (referred to as a “spaceport license” for brevity). One day a launch operator approaches you about using some portion of your airport to conduct three test launches. The operator will bring its own launch vehicle, launch, and leave. No one else has ever expressed an interest in using your airport for such purposes, but you would like to accommodate this prospective customer. Do you need an FAA spaceport license? Based on these very attractive facts, probably not.

The same logic that applies to Armadillo’s request for a legal interpretation should apply here. Although the FAA has not addressed this in a public determination as it did with Armadillo, the regulations and precedent provide a basis for figuring it out.

Under the FAA’s rules, “operation of a launch site” means “the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.” 14 C.F.R. § 401.5. On its face, an airport’s circumstances appear materially different than those of Armadillo and Sea Launch. Airports do have permanent infrastructure in the form of runways and buildings, and an airport’s location itself is pretty permanent.

The FAA, however, did not require one airport to acquire a spaceport license when it hosted a number of launch operators. In 2008, Armadillo won the Northrup Grumman Lunar Lander Challenge at Las Cruces International Airport, which hosted the Challenge over a few days. Las Cruces did not obtain a spaceport license. Although there is no published analysis from the FAA, we can, perhaps, reverse engineer the reasoning. Las Cruces continues to operate as an airport. It is not impermanent. The FAA must therefore have construed something else as impermanent. The regulation says “operation of a launch site” means “the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.” Perhaps it is the support of launch that must be permanent before a spaceport license is required. Alternatively, perhaps the safety operations must be permanent to trigger a license requirement. The fact that the Challenge only lasted a weekend would support either hypothesis. Las Cruces had supported the Challenge in an earlier year, so, like with Sea Launch, the presence of a launch operator more than once did not render the site permanent.  Perhaps a site must be permanent as a spaceport? If an airport only has one or two launch customers a year, the FAA might not consider it a permanent launch site. In that case, an airport might not worry about spaceport licensing until it is sure that there is demand for its services as a spaceport.

If an airport sought certainty on this question, it might ask the FAA for an explanation of the decision in Las Cruces. Under the Administrative Procedure Act, an agency should make publicly available its final opinions made in the adjudication of cases. Under case law, licensing constitutes an adjudication.   Additionally, depending on how many launch operator customers it foresees, an airport might consider seeking a legal interpretation from the FAA to ensure it does not run afoul of the FAA’s rules.

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Nomadic Launch Operators

This will be a post in two parts.  The first will address the launch operator.  The second will address the launch site operator.

Suppose you are building a rocket in your garage or factory and do not live near one of the coasts. You are not receiving money from the U.S. government or wealthy investors—which is only mentioned to demonstrate your need for frugality, not because the lack of federal funds matters to the legal analysis. You will want to conduct any test launches of your vehicle close to home. You may have a small, isolated airport near you, without a lot of traffic or nearby population, which would be happy to lease you some space for your low-altitude, suborbital launch. You may be near a large ranch, for that matter. The only problem is the airport or ranch doesn’t want to go through the trouble and expense of consulting with the FAA, conducting a costly environmental review, and waiting 180 days from the submission of its license application for just your few launches. You don’t want to wait either. If you’re the only prospective launch operator on the horizon of that airport or ranch, you might not have to. Armadillo Aerospace, which was looking at empty pieces of land as well as an airport from which to conduct launches, asked the FAA whether it had to obtain a license to operate a launch site. The FAA said it did not.

Chapter 509 of Title 51 of the United States Code (frequently referred to as the Commercial Space Launch Act) requires a person to obtain a license to “operate a launch site.” 51 U.S.C. § 50904(a). Chapter 509 defines a launch site as “the location on Earth from which a launch takes place (as defined in a license the Secretary issues or transfers under this chapter) and necessary facilities at that location.” 51 U.S.C. § 50902. Under the FAA’s rules, “operation of a launch site” means “the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.” 14 C.F.R. § 401.5. When it issued this definition, the Department of Transportation observed, “the operation of a launch site involves continuing operations at a permanent location.” Licensing Regulations, 64 Fed. Reg. 11004, 11007 (Apr. 4, 1988). Accordingly, if a site is not permanent, then the person operating it is not operating a launch site under the FAA’s rules, and that person does not need an FAA license under 14 C.F.R. part 420, the FAA’s “spaceport” regulations.

In Armadillo’s case, it proposed to operate a vertical-takeoff and vertical landing rocket under an experimental permit. The FAA described Armadillo’s proposed operations as follows:

Armadillo would go to a site as many as two times per month for two or three days. The sites would require no infrastructure to support an Armadillo launch. Armadillo would transport its vehicle, fuel, and all personnel and equipment to the proposed site the day of or the day prior to its launches. Armadillo would remove any equipment or material used for the launches immediately afterwards. Neither Armadillo nor the landowner will prepare the site or engage in any permanent or temporary construction. Armadillo plans no permanent presence, now or in the future. With the exception of Las Cruces International Airport in New Mexico, the launch sites would not be used by other launch operators. In short, Armadillo would arrive at each site, launch and leave.

Under these circumstances, the FAA found that Armadillo did not require a license to operate a launch site because Armadillo’s proposed activities at the site lacked the necessary indicators of permanence. Specifically, neither Armadillo nor the landowners planned any construction, and Armadillo intended to leave no equipment, at any of its planned launch sites.  Armadillo would only spend two or three days at each site. The FAA compared Armadillo’s impermanence to that of Sea Launch, a launch operator which launched from the Pacific Ocean and left no facilities or personnel at the location after its launch took place. As the FAA said, “Even though Sea Launch returns to its site again and again, year after year, the FAA does not treat the site as permanent and thus requiring [] a license for its operation.”

Legal interpretations and license determinations may constitute precedent. Accordingly, the facts presented in these examples, if present elsewhere, may provide guidance on whether a launch operator needs to obtain a license to operate a launch site. Although the FAA reserved the question in its response to Armadillo, the reasoning should also provide guidance to anyone, such as an airport, who would like to offer a site to a launch operator on a temporary basis. That aspect will be discussed next week.

 

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