Inflating the Penalties for Commercial Space Transportation

To account for inflation, the Federal Aviation Administration issued a final rule that adjusts the fines—“civil penalties” in FAA lingo—that the agency may impose for violations of its regulations and statutes. The agency has to do this because several laws require inflation adjustments to ensure that the threatened fines of regulatory agencies continue to have a deterrent effect.   The laws include the Federal Civil Penalties Inflation Adjustment Act of 1990, the Debt Collection Improvement Act of 1996, and, most recently, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The 2015 Act amended the formula for and frequency of agency inflation adjustments, requiring an initial “catch-up” adjustment, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. The FAA implemented the initial adjustment in July 2016. This new rule provides the first of the annual adjustments. The FAA notes that the new law:

provides a formula for annual inflationary adjustments that increase civil penalty maximums and minimums by a cost-of- living adjustment (COLA). Under the FCPIAA, as amended by the 2015 Act, the COLA for each civil penalty is the percent change between the U.S. Department of Labor’s Consumer Price Index for all-urban consumers (CPI–U) for the month of October of the calendar year preceding the adjustment and the CPI–U for the month of October of the previous calendar year. Any resulting increase must be rounded to the nearest $1.

*          *          *

To derive the 2017 adjustment, the FAA must multiply the maximum or minimum penalty amount by the percent change between the October 2016 CPI–U and the October 2015 CPI– U. In this case, October 2016 CPI–U (241.729)/October 2015 CPI–U (237.838) = Multiplier (1.01636).5 Accordingly, the agency multiplied the civil penalty maximums and minimums provided in current 14 CFR 13.301 and 406.9 by 1.01636 to derive the updated maximums and minimums provided in this final rule.

Relying on an interpretation of the 2015 law from the Office of Management and Budget, the FAA did not issue a notice of proposed rulemaking for public comment. This final rule changes the minimum and maximum penalties effective April 10, 2017, the day the rule was published in the Federal Register.

The FAA’s space transportation regulations do not contain minimum or maximum penalties like the FAA’s aviation regulations do. Instead, the commercial space regulation, 14 C.F.R. § 406.9, implements the single penalty listed in 51 U.S.C. ch. 509 (aka the Commercial Space Launch Act). When Congress initially granted the FAA the authority to impose civil penalties, it capped the amount at $100,000.00 per violation per day. 51 U.S.C. § 50917. The United States Code still says that. With the passage of its various inflation adjustment laws, Congress mandated a global search and replace on civil penalties, including those imposed for violations of space regulations. Thus, the FAA’s own new requirement now says:

14 C.F.R. § 406.9 Civil Penalties.

(a) Civil penalty liability. Under 51 U.S.C. 50917(c), a person found by the FAA to have violated a requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act, is liable to the United States for a civil penalty of not more than $229,562 for each violation. A separate violation occurs for each day the violation continues.

The FAA will not necessarily claim a civil penalty as high as that, and, to my knowledge, has yet to do so.  Agencies are allowed discretion in deciding the size of a penalty, and will typically attempt to impose smaller fines for first-time violations.

 

 

 

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Testimony to House Space Subcommittee

What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States.  It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.

Testimony of Laura Montgomery

Before the Committee on Science, Space, and Technology

Subcommittee on Space

Regulating Space: Innovation, Liberty, and International Obligations

March 8, 2017, Rayburn Building

 

Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United States not regulate new commercial space activities such as lunar habitats, mining, satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the economy, and the ultimate consumer upwards of four trillion dollars, according to recent research from the Mercatus Center,[1] so we should think carefully before creating more drag on the space sector.

A misunderstanding of the Outer Space Treaty looms as possible regulatory drag, because many claim Article VI of the treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as “oversees” or “regulates”—those activities. Although Article VI states that “[t]he activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty,” to interpret this as forbidding unauthorized, private space activity is wrong for three reasons. The treaty does not forbid private operators from operating in outer space. It does not say that either all or any particular activity must be authorized. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.

In order to put to bed the regulatory uncertainty arising out of these misunderstandings, Congress could take a number of different approaches. The most certain and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of Article VI. Continue reading

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For Whom the Clock Starts, For Whom it Stops, and Tolling

When a launch or reentry operator applies for a launch or reentry license from the Federal Aviation Administration, the FAA has 180 days to determine whether to grant the license or not. This time limit comes from  the Commercial Space Launch Act (CSLA), 51 U.S.C. ch. 509, and the FAA has to follow it. This sounds very simple, but, of course, it isn’t. Because Congress did not specify how the FAA is to count the days, the FAA’s regulations, which it must follow under Supreme Court case law, start and stop the clock based on whether the FAA has enough information in the application to start working on it.

The clock starts. When does the clock start counting down? Might an applicant submit its name and address and have the clock start running? No.

Under the FAA’s rules the clock starts when an applicant submits an accepted application.  An accepted license application is one that is “complete enough for the FAA to start its review.” In other words, the applicant has to provide enough information for the FAA to start figuring out if the operator can satisfy, among other things, the FAA’s safety and financial requirements. That’s when the clock starts ticking.

The FAA can afford this approach because it has the ability to “toll” its review: it can stop the clock. As the regulations note, “[t]he FAA’s acceptance of an application does not mean it has determined that the application is complete.”

The clock stops. If the FAA has an application that does not contain all the necessary information, the FAA will toll the review period under section 413.15(b). To do that, the FAA writes to the applicant and requests the missing information. Although this part is not in the rules, the FAA’s notification of the applicant that the agency needs more information will contain a date by which the applicant should submit the information to avoid tolling. If the applicant provides the information before that date, the clock does not stop. If the FAA does not receive the requested information, the clock stops on the specified date. For example, let’s say that on Day 50 of the review period the FAA writes the applicant requesting information about an applicant’s safety official because the applicant doesn’t seem to have one. The FAA requests the information by April 5, which is Day 60. The applicant does not provide the information. Although the FAA may keep working on the application, it will toll the review period, and the clock doesn’t start again until May 1, when the applicant finally provides the FAA the identity of its safety official.

This system is actually a great benefit to the applicant. If tolling were unavailable, the FAA would have to deny the license application at 180 days for missing information, and the clock would reset to Day 0.

Another interesting point is that both the CSLA and the FAA’s regulations state that the FAA must inform the applicant in writing of any additional information the agency needs if it hasn’t made its final determination at 120 days.

Thus we see that the FAA, in accordance with Congressional direction and expectations, structured its regulations on this topic to allow an applicant to submit an incomplete application, albeit one that is “complete enough” for the FAA to start its review. Were the FAA to change this approach it would have to change its regulations.

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Science Fiction, Space Law, and the Regulatory State: Or, How John Varley Broke My Heart but Other Science Fiction Writers Shouldn’t Have To

redthunder-from-amazonI read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.

I grew up, I went to law school, I worked for a law firm.   I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.

Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with, but I may be wrong). But, and here’s the sad part, the characters made no mention of FAA launch licensing.

How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley? Continue reading

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Unlicensed Government Launches

Under 51 U.S.C. Ch. 509 (the Commercial Space Launch Act or Chapter 509) a U.S. person requires a license to launch or reenter a launch or reentry vehicle . The U.S. Government, however, does not. Chapter 509 specifically states in section 50919 (emphasis added) that

(g) This chapter does not apply to—

(A) a launch, reentry, operation of a launch vehicle or reentry vehicle, operation of a launch site or reentry site, or other space activity the Government carries out for the Government; or

(B) planning or policies related to the launch, reentry, operation, or activity under subparagraph (A).

This creates a two-part test. A launch operator need not obtain an FAA license if 1) the U.S. Government is the launch operator (the Government “carries out” the launch), and if 2) the payload belongs to the Government (the launch is “for the Government”). If the launch company Xanadu takes a government payload to orbit, Xanadu needs an FAA license. When NASA carried out Shuttle launches, which were by and for the government, it did not need an FAA license.

This all seems pretty easy, but it isn’t. Unlike Dan Brown in Deception Point, most of us know that private companies design, build, and launch rockets. Private companies are even involved in government launches. So how is it that we say that the government ever carries out a launch?

This question became a point of contention between NASA and the Department of Transportation in 1990, before the Office of Commercial Space Transportation  moved to the FAA. In an opinion, the bulk of which erroneously analyzes the question based on whose waiver-of-claims agreements apply, the Office of Legal Counsel of the Department of Justice reviewed whether General Dynamics’ launch of a payload called CRRES required a license. NASA had entered into a launch services contract with General Dynamics Corporation under which General Dynamics agreed to provide all supplies and services necessary to design, test, and launch the CRRES payload into orbit. For this launch, title to the vehicle remained with General Dynamics. General Dynamics obtained a launch license from the Department of Transportation, but NASA thought it didn’t need one. On November 15, 1990, the Department of Justice stated that the Department of Transportation’s launch licensing authority did not apply to launches where the Government was so substantially involved that it effectively directed or controlled the launch.

This pronouncement became a litmus test of sorts for determining whether a government agency was “carrying out” the launch. If the agency was effectively directing or controlling the launch, it was carrying it out. These might be different words meaning the same thing, but, regardless of the phrasing, figuring out whether the government is carrying out a launch should be a fact-based inquiry.

First the “Don’ts.” 1. Don’t confuse the government’s status as a customer—which is the second part of the two-part test—with the question of whether it is carrying out a launch. There are many satellite manufacturers who contract for launch services. No one thinks they are carrying out the launch. 2. Don’t think that being “substantially involved” in a launch is enough to carry it out. It is possible to be substantially involved in a launch, and many customers are, and not be carrying it out.

There may be a series of useful questions to ask about the activity itself to determine who is carrying it out. Whose employees are on console? For whom does the mission director work? Who performs the trajectory analysis? Who has which go/no go decisions? How are those decisions qualitatively different from those of a commercial customer putting up a comsat?

There is a school of thought that being substantially involved in designing a launch vehicle means one can claim to be carrying out the launch. That seems at odd with the statutory requirement of “carrying out,” which denotes an activity.   After all, an aircraft manufacturer is not said to be flying or operating an aircraft just because it designed it.

The ultimate question remains unsettled. People more familiar with the launch process may have better or more questions than these, but a proper determination will attempt to address these questions or others like them.

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Space Insurance: Duration of Coverage

When the FAA licenses, or issues a permit for, a launch or reentry of a launch or reentry vehicle, the FAA requires that the licensee or permittee obtain insurance coverage for damages that may arise out of the FAA-authorized activity. This coverage would apply to third party liability and to government property.

Title 14 of the Code of Federal Regulations, 14 C.F.R. §§ 440.11 and 440.12, require that coverage extend for longer than the duration of the ordinary meanings of launch and reentry. For a launch, insurance must attach when the licensed launch or permitted activity starts, and the insurance must remain full force and effect until either 1) completion of licensed launch or permitted activities at a launch or reentry site; and 2) for orbital launch until the later of: a) 30 days following payload separation, or attempted payload separation in the event of a payload separation anomaly; or b) 30 days from ignition of the launch vehicle.

For a suborbital launch, insurance must continue until the later of motor impact and payload recovery; or the FAA determines that risk to third parties and Government property as a result of licensed launch or permitted activities is sufficiently small that financial responsibility is no longer necessary. The FAA makes that determination through the risk analysis it conducts before the launch to determine maximum probable loss.

For reentry of a reentry vehicle, which includes a reusable launch vehicle, insurance must remain in effect as follows: for ground operations, until completion of licensed reentry at the reentry site; and for other licensed reentry activities, 30 days from initiation of reentry flight; however, in the event of an abort that results in the reentry vehicle remaining on orbit, insurance must remain in place until the FAA’s determination that risk to third parties and Government property as a result of licensed reentry is sufficiently small that financial responsibility is no longer necessary, as determined by the FAA through the risk analysis conducted to determine maximum probable loss.

Note that because the statutory definition of launch is very broad, the requirements for insurance coverage apply to what 14 C.F.R. part 417 calls “launch processing,” namely, preparations for launch. Specifically, 51 U.S.C. § 50902(7) defines launch to include “activities involved in the preparation of a launch vehicle or payload for launch, when those activities take place at a launch site in the United States.” Note as well that 14 C.F.R. § 401.5 defines launch differently depending on whether a launch takes place under license or permit.

 

 

 

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Article VI, the FAA’s Payload Review, and Foreign Policy Considerations

After last Friday’s post on the Outer Space Treaty’s Article VI, which states that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate state party to the treaty, I had some interesting conversations on the topic at a couple of conferences. One person pointed out that the FAA’s payload review authority allowed the FAA to take foreign policy interests into account when making a payload determination. This is true and not inappropriate, but should not be applied for Article VI reasons in light of the fact that the provision is not self-executing.

When conducting a payload review, the FAA must do so consistent with public health and safety, safety of property, national security and foreign policy interests. The FAA’s foreign policy authority may be a double-edged sword for industry. (If it were a light saber, we’d speak of whether it glowed blue or red.)

On the one hand, the FAA could use its powers to encourage, facilitate and promote. For example, were a prospective lunar harpist to seek a payload determination from the FAA, the FAA would engage in its normal practice of inter-agency consultation. The U.S. Department of State might raise concerns with respect to the fact that Congress has not passed legislation to regulate harp playing despite Article VI providing that all States Parties to the treaty authorize and continuously supervise the acts of their nationals in outer space. With its own foreign policy authority, independent of that of the State Department, the FAA could determine that because Article VI is not self-executing, until Congress acts, the U.S. has not determined that playing the harp constitutes the type of activity requiring oversight under Article VI.  Having satisfied its consultation obligations the FAA could then issue a favorable payload determination.

Conversely, the FAA could worry that other countries might raise issues about Article VI authorization and continuing supervision of a lunar harpist and contemplate denying the harpist’s requested payload determination. Such a determination should, however, run afoul of the fact that Congress has not determined that lunar harp playing is the kind of activity that requires federal oversight. The FAA must make any policy determinations in accordance with U.S. law, and a non-self-executing treaty is not, as noted by the Supreme Court’s Medellin opinion, binding federal law. To treat it as such would raise the question of whether the FAA was usurping Congress’s legislative role.

Lunar harp playing is a vaguely ludicrous example of an activity that could take place extra terrestrially, but it makes the point that the Outer Space Treaty left the determinations of what requires authorization and continuing supervision to each signatory nation. If Congress hasn’t decided that lunar harpists or miners require oversight for their respective activities, they don’t.  The treaty does not say which activities must be regulated, and in the United States that determination lies with Congress. For the FAA to say that it had the ability to make such determinations about a non-self-executing treaty would be to say that it, rather than the legislative branch, could decide which activities required federal oversight.

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An Agency’s Rulemaking Priorities for Space Transportation

An agency’s notice of proposed rulemaking (an NPRM) does not get written overnight. An agency must identify a problem, come up with its proposed solution, justify it by explaining the legality and need for it in an explanatory preamble, and subject it to a regulatory evaluation, which is bureaucrat-speak for an analysis of the costs and benefits of the proposed requirements.

Sometimes the public and industry are surprised by an NPRM. They don’t need to be. A Unified Agenda provides the public a way to learn about an agency’s rulemaking priorities. The Unified Agenda reports regulatory and deregulatory activities under development in the agencies of the federal government, but not Congress. Fall editions provide The Regulatory Plan, in which agencies state their regulatory priorities and identify their most significant regulatory activities in the coming year. An agency may also list long-term actions scheduled for more than 12 months away. They may list completed actions as well.

This page provides a space for inputting the agency you are interested in. The FAA is in the Department of Transportation, so I selected that, and it took me here. I scrolled down, and noticed rulemakings addressing both aviation and space. There is one, for example, for a rulemaking on Reciprocal Waivers of Claims for Licensed or Permitted Launch and Reentry Activities. If you click on the linked RIN number and scroll down, you’ll see that it shows links to the Federal Register notices for the NPRM and for a re-opening of the comment period. There is no link to a final rule, but it’s always good to check–using the search engine of your choice. It turns out that the final rule has been published, and may be found here.

The list contains other space rules, including one addressing risk (which we know is out as a final rule, too), civil penalties (which we can tell apply to space because the summary refers to part 460 of the Title 14 of the Code of Federal Regulations (CFR)), orbital debris (in which the FAA proposes to align its requirements with government guidelines and practices), procedures and equivalent level of safety determinations (which we know because the summary contains numerous citations to parts of 14 C.F.R. chapter III), and flight restrictions in the proximity of launch and reentry operations (which relies on the Federal Aviation Act for its authority).

From this exploration we can see that the Unified Agenda is a useful tool. It may not always provide the latest information, so double checking the status of any given item is a good idea.

 

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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

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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 https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf . 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): http://generalaviationnews.com/2012/09/09/the-cost-of-certification/ 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.

 

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