Senate Hearing, Orbital Debris, and a Manx Prize

I watched yesterday’s latest in the series of Senate Commerce Committee hearings on Reopening the American Frontier. There was, as billed, lots of good talk about public private partnerships in the development of the space frontier, but what I found most interesting was one of the responses of Dr. Moriba K. Jah to a question about orbital debris, of which there is a lot in orbit, from Senator Ted Cruz.

Background:  In his written testimony here, Dr. Jah explains the magnitude of the orbital debris problem as follows:

The US Strategic Command (USSTRATCOM) currently has over 24,000 records active in its space situational awareness database, commonly referred to as the Department of Defense “catalog.” Of these, well over 18,400 records correspond to well-tracked, well-understood [resident space objects] RSOs in Earth-centric orbit, roughly 1,300 of which are operational satellites; the rest are so-called “space junk.”

In response to Senator Cruz’s question about what to do about space debris, Dr. Jah said, among other things, that the European Space Agency has something called a Clean Space initiative which is working to identify and remove space debris. He noted that it’s more expensive to bring something down than to put up something that works. He also said that it’s politically not very feasible because any sovereign nation is the owner of that piece of debris. (But see here for a discussion of the ownership issue.) Dr. Jah himself advocates a civil space traffic management public private partnership.

De-orbiting.  What delighted me, however, was his mention of de-orbiting space debris. I think someone should offer a prize to anyone who figures out how to bring it in. I even wrote a science fiction novel to that effect titled Manx Prize, where a consortium of satellite and orbitat operators headquartered on the Isle of Man offers a prize to anyone who first brings in a large, dead satellite. Safely. It made sense to me that the companies who need space cleaned up should offer an incentive to do so, one perhaps large enough for the contestant to be able to purchase the zombie satellite on orbit. Just to be clear, the Consortium of Man is in no way modeled after the Space Data Association, which in real life is situated on the Isle of Man. I, like everyone else, just really like saying “Manx.”

There are a host of legal issues associated with de-orbiting someone else’s property. The offer of a prize means that the contestants have to figure them out as well as all the technical issues. Charlotte Fisher is the engineer trying to win this prize, and the story centers around her efforts and travails, but she has a lawyer for the other stuff, like purchasing dead satellites from their owners and getting access to proprietary technical specifications. The story involves regulatory shenanigans. I was at the FAA when I wrote this, so I was sensitive about naming the regulatory agency so I just called it “the regulator.” It’s nice and ominous sounding, isn’t it? I got around ITAR, the International Traffic in Arms Regulations, but in no way that constitutes sound legal advice for anyone in the present. CFIUS, the Committee on Foreign Investment in the United States, came in handy at the end.

For the technology at the time I was writing the book Space News had a lot of stories about dead satellites.  Someone won a real life prize for a sticky boom, and I found a design for what Charlotte called her “brake-and-bake.”  The day job had me good on launch, ok on reentry, but pretty poor on orbit.  Basically, my knowledge tracked the FAA’s evolving jurisdiction: but I knew what I needed to research, I knew where to find things, and I had access to a few good orbital mechanics.

Anyway, a prize would be cool. I recall hearing that the Ansari X Prize produced a collective expenditure on reusable suborbital rockets by all the contestants far in excess of what the prize offered. Competition can work. Think of the glory. Now, if only there were someone around with the right incentives to offer a prize for getting rid of debris.

And, if you feel like picking up a copy of the book, I thank you in advance.

 

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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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The Life Changing Magic of Tidying Way Up High

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

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