GAO Report on Re-locating the FAA’s Space Office, and Aviation Advisory Committee on Space Industry use of Airspace

A couple of weeks ago the Government Accounting Office responded to a request from members of the House of Representatives that GAO review issues related to moving the FAA’s Office of Commercial Space Transportation (AST) back to the Department of Transportation. The FAA is part of DOT, and AST is part of the FAA. I will not address the whole report, just those concerns that would actually require a change in the law rather than a change in location to resolve.  Additionally, it appears that the FAA plans to rely on the aviation community to advise on how to integrate space transportation into the navigable airspace.

AST is the specific part of the FAA that regulates and authorizes non-federal launch, reentry, and the operation of launch or reentry sites as carried out by U.S. citizens or within the United States under 51 U.S.C. ch. 509. The Secretary of Transportation originally located the space office within the Office of the Secretary at DOT before delegating the Secretary’s authority over space to the FAA in 1995.

GAO interviewed launch and reentry operators who have operated under FAA licenses and permits as well as operators of launch and reentry sites, commonly known as spaceports, for its report. Also, GAO interviewed employees of both the FAA and DOT, including at senior levels.

Airspace Issues. GAO reported that one company said that the lines of responsibility between AST and the FAA’s Air Traffic Organization (ATO) lack clear definition. Under 49 U.S.C. § 40103(b),

(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.

(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.

Moving AST out of the FAA would not change the rest of the FAA’s authority over the navigable airspace. Relocation would merely require Metro rides for meetings between DOT—which is located by the Navy Yard—and the FAA—which is located on the Mall—or telecons between people in different buildings rather than the same building. This does not seem like an effective cure for what is at heart a substantive question of legal authority.  AST has authority over launch and reentry, but launch and reentry take place in navigable airspace, which is used by airlines and other persons operating aircraft.

The issue is also a question of weight. Aviation is a much larger industry than space. Whether the space regulator resides in the FAA or DOT, the aviation industry will continue to occupy the same dimensions. I fervently hope the space industry continues its growth, but the difference between the two sectors will still have the same political weight, regardless of whether AST resides in DOT or not. DOT itself indicated as much when, according to GAO’s report, “Officials from the Office of the Secretary of Transportation also said that even if the commercial space transportation office were moved to their office, they would still need to work with FAA on airspace access issues and that they would not necessarily favor the industry regarding airspace issues.” (emphasis added). Just as the space industry and AST must educate and persuade persons within the FAA, so would they have to persuade persons within DOT, and there they would be starting over again.

Advisory Committee. GAO reports a far more troubling comment from an Air Traffic Organization employee, who said that the “FAA plans to start an aviation rulemaking advisory committee that will help to determine airspace access priorities for all national airspace users.” To appreciate this, we need to understand that the FAA has several advisory committees: the referenced Aviation Rulemaking Advisory Committee (ARAC) and the Commercial Space Transportation Advisory Committee (COMSTAC). They each consist of industry members, and they address issues related to their respective industries. If the ARAC determines airspace access priorities it cannot help but be informed by its members, and its members are not commercial space operators. Again, the aviation community may outweigh the commercial space operators unless someone takes steps to ensure that commercial space has a voice at the ARAC table.  Also, COMSTAC now has a renewed charter so perhaps it could play a role.

Spaceports and a One-Stop Shop. One spaceport operator stated an interest in a one-stop shop, meaning that the spaceport operator preferred to have just one point of contact within the FAA. This person said he had to work not just with AST but with the Office of Airports in the FAA to address the effects of spaceports on airports. Moving AST out of the FAA would not remove this requirement. If an airport wants to host commercial launches and reentries it need a license to operate a launch or reentry site. Many airports receive federal grant money, and the laws and regulations that apply to that grant money tend to restrict it to aviation uses. Space transportation does not fall under the category of aviation, so the Office of Airports tends to require insight into the new use proposed for the airport. Were AST moved to DOT, those laws and regulations would still apply to airports that had accepted federal grant money, and an airport that wanted to be a spaceport would still need to abide by those requirements and attend to the Office of Airports.

 

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Words Matter: Regulation vs Regulation

Words matter.  Although Lewis Carroll’s Humpty Dumpty was perhaps wrong to claim that words meant what he wanted them to mean, it’s still helpful to remember that sometimes people mean different things.  This may be so with the term “regulation.”

“Regulation” as Oversight  As a former regulatory bureaucrat I always thought of “regulation” as meaning that some part of the government gets to tell someone not in the government (a “private actor”) what he or she must or may not do in some specific context.  The Federal Aviation Administration is a great example of a regulator.  It tells builders and operators of aircraft what they must or may not do via certificates, regulations, orders, exemptions, and a host of other regulatory mechanisms; and that’s just on the aviation side.  On the space transportation side of the agency, the FAA regulates launch, reentry, and non-federal spaceports, including those operated by states.

The FAA issues regulations through rulemaking.  If a private actor violates one of the agency’s regulations the FAA may impose fines in the form of civil penalties or revoke the private actor’s authorizations to fly or build an aircraft or launch a launch vehicle.  I long thought this was what everyone meant by regulation.

“Regulation” as the Rule of Law.  I think I was wrong.  In the past year or so I’ve heard other references to regulation that left me quite puzzled at first.  They did not apply to some part of the executive branch telling the private sector how to conduct itself.  Instead, these people spoke of regulation more as a sort of order.  Some wanted regulation and title to protect property rights.  Investors wanted regulation for certainty, so they would understand the lay of the land.  When questioned more specifically, some investors turned out to want rules of the road, not a series of authorizations and rules.  (Others, by the way, the ones who wanted what I think of as regulation, stressed they did not want a lot of it.  That was bad for business, too.)

This broader use of the term regulation suggests that people want to understand what law applies.  Specifically, the question of certainty over property rights appears to loom large.  That concern I understand.  If a private actor spent a fortune and decades of his or her life getting to the Moon, that person might worry that the investment might not be protected by the rule of law out where no nation has sovereignty.  After all, how will two private entities handle disputes when they both lay claim to the same patch of ice on the Moon?  Who will decide such disputes?  What law will apply?  What if another country wants to claim the lunar village you just finished building?

Words of Caution.  These are important questions.  The critical thing is not to mix the questions up with regulation, “real” regulation, if I may be allowed to call it that.  Assigning some agency in the federal government to authorize lunar roving does not address the questions of how to tell who owns what, how to handle disputes, how to ensure that no one takes someone else’s hard work, or what law will apply.  Those people looking for rules of the road should avoid asking for regulation.  They should be more specific and say they want certainty about property rights or the rule of law.  If they ask Congress for “regulation,” they’ll get it.

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Softly, Softly

On October 4, 2017, the FAA issued new regulations for noise certification standards on certain airplanes.  They become effective November 3, 2017.  Certification standards apply to the design and manufacture of an aircraft.  Operational rules apply to its operation.  Specifically, the new rules adopt:

a new noise standard for newly certificated subsonic jet airplanes and subsonic transport category large airplanes. By lowering the noise limit, this standard requires quieter designs and encourages manufacturers to adopt the latest available noise reduction technology into their aircraft designs. This rulemaking adopts new noise certification standards for airplanes certificated in the United States (known as Stage 5) that are equivalent to the International Civil Aviation Organization (ICAO) Annex 16, Volume I standard known as Chapter 14.

These new rules will not apply to launch or reentry vehicles because the law does not treat launch and reentry vehicles as aircraft.  Additionally, launch and reentry vehicles do not undergo certification. However, the new rules may serve as a reminder of what happens when noise overburdens a community.  The communities turn to Congress and demand that Congres take action.

Another interesting facet of the new rules is that the FAA describes its new standards as equivalent to the international standards of the International Civil Aviation Organization.  ICAO has expressed keen interest in suborbital launch vehicles.

Try to keep it down out there.

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High Grade Ore by Lee Hart

One may find space law anywhere.  Stanza 4 contains an interesting approach to verifying a claim. Also, the whole ballad is totally cool. Mr. Hart kindly gave me permission to share this here, and a band will be setting it to music. LM.

High Grade Ore
by Lee Hart

Now Murphy was a spacer; a miner, nothing more.
A bit of human jetsam lost in night’s Plutonian shore.
Until he found that asteroid, and entered into lore;
Him and 40 kilotons of high grade ore.

He’d manned his tiny ship alone, a year or maybe more.
A flea among the asteroids; homeless, starving, poor.
Each rock with only traces of what he searched ’em for.
Hunting for his holy grail of high grade ore.

The radar caught his vector, heading for L4.
With delta-V a little high, but fusion drive full bore.
“Cap’n Murphy callin’ in this day of August 4.
‘A claimin’ 40 kilotons of high grade ore.”

The base assayer radioed, “You’ve heard the rules before.
Your claim’s no good until you land that worthless hunk of ore.
And then I’ll have to analyze its purity before
You own that 40 kilotons of high grade ore.”

“Jesus, what you burning there?”, the port controller swore.
“There’s colors there in your exhaust I’ve never seen before”.
“Just gum’ment forms”, said Murphy, “and rulebooks by the score”.
“To help me trim this delta-V, that’s all I kept ’em for”.

“Murphy, there’s a lawyer here, from Cheatham, Ripp, and Gore.
He says your bills are way behind, a year or maybe more.”
“Jes’ stand him on me landin’ pad, I’ll pay him off for sure.
And drop him 40 kilotons of high grade ore.”

The radar station checked the course, then checked it even more.
It seemed that Murphy’d land a thousand yards below the floor.
The operator called it in, then headed out the door.
“I’ll take my last vacation day, that’s what I saved it for!”.

“Veer off, ya goddam lunatic!”, the base commander swore.
“That rock’ll smash a hole in us a mile wide or more!”
“Now don’t you worry”, Murphy said, “I’ve done this thing before.
It’s only 40 kilotons of high grade ore.”

And then the fusion drive waxed bright, full thrust or maybe more.
The tiny ship, it floated down; the rock, it towered o’er
Straining every rivet with a load like Atlas bore.
To stop that 40 kilotons of high grade ore.

The falling mountain slowed, then crawled, then gently kissed the floor.
The fusion drive ran out of fuel in just a second more.
And as the engines died away, the scale of Smelter 4
Was reading 40 kilotons of high grade ore.

A mob raced to the landing pit, there must have been a score
To cheer the god, or curse the fool who’d shown them all death’s door.
They found no man, they found no ship; an engine, little more
Beneath that 40 kilotons of high grade ore.

The cold equations do not lie, nor cheat like some old whore.
He knew them better than his wife (who’d left the year before).
Murphy didn’t have the fuel to make the dock secure
While pushing 40 kilotons of high grade ore.

A fusion drive burns anything; that’s what they use ’em for.
So piece by piece, his ship he fed the grim reactor core.
And when it all was not enough, he entered through that door
To stop his 40 kilotons of high grade ore.

The assay team reported something odd about this ore.
They saw where Murphy’d tried to cut; that hadn’t worked for sure.
They tried to chisel, burn, and blast, and finally they tore
A bit off 40 kilotons of high grade ore.

The chief assayer checked it out, and tallied up the score.
The density was very high; few elements are more.
Its hue, its malleability; its carats — 24!
My God, it’s 40 kilotons of pure gold ore!

No one has yet discovered just where he found that ore.
But Murphy’s gold put us in space; a million men and more.
The future destiny of man, now it is secure.
Thanks to a lonely miner and his high grade ore.

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Is it a Reentry Vehicle if it Doesn’t Return Substantially Intact?

Let’s say you plan to bring something in from outer space.  You might wonder whether it needs a reentry license from the Federal Aviation Administration.  The answer will depend on what you bring back. (It will also depend on a lot of other factors, such as your location and whether you are a citizen of the United States).  If you plan to reenter a reentry vehicle you do need an FAA reentry license.   When Congress gave the FAA authority over reentry of a reentry vehicle, it defined a reentry vehicle to mean “a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact.”  If your object doesn’t satisfy the definition, you don’t need a reentry license.  This definition excludes, for example, satellites.

To qualify as a reentry vehicle, the vehicle needs to be designed to return form Earth orbit or outer space substantially intact, regardless of whether it’s a simple reentry vehicle or a reusable launch vehicle.  We know that the requirement that it be substantially intact applies to both reusable and non-reusable vehicles because we all remember the grammar rule about how if a modifier comes after a list of two things it modifies only the second thing unless there’s a comma.  Because of the location of the comma, “substantially intact” applies to both types of vehicles.  One thing we can tell from this definition is that reentry of most satellites would not need an FAA reentry license.

Easy cases. How do we figure out if a manufacturer designed a vehicle to return substantially intact?   Let’s take the easy scenarios first.  If one operator returns a capsule from space, lands it in the ocean, and pulls a bunch of rocks or science experiments out of it, it’s not a stretch at all to say that vehicle has returned substantially intact.  At the other end of the spectrum, another vehicle might take trash out of an orbiting habitat and be designed to burn up in the atmosphere.  It won’t need a license because it won’t return substantially intact.

Hard case.  Of course, real life will offer more difficult examples.  What do we say about a vehicle with a surviving chunk of titanium that reaches the surface of Earth ?  Titanium can survive reentry, but it’s not like the vehicle itself will come back substantially intact.   Satellites exist which have pieces that can survive the rigors of atmospheric reentry yet they are not designed to survive.  The risk numbers for Envisat, for example, indicated as much.  No, the definition requires the vehicle to be designed to return substantially intact.  A chunk of titanium alone hardly counts as a vehicle.  What if other bits of the vehicle and the chunk of titanium survive?  Then we have to figure out if those count as a vehicle and as “substantial.”

These types of questions will likely get worked out on a case by case basis.

 

 

 

 

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