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.
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. It 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.
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 →
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.