Last week the House passed H.R. 4, the FAA Reauthorization Act of 2018. To become law it would need to be voted on by the Senate and signed by the President. The Senate, however, has its own reauthorization bill so we will have to see how closely they resemble each other. Mostly, the House bill addresses aviation. It also, however, contains some space provisions, of which the discretionary user fees, the FACA exemptions, and space support vehicles are the most interesting.
Discretionary user fees. Section 310 of the bill would allow the FAA to accept funds from its license and permit applicants for the FAA’s review of their applications. Under current law, the FAA may collect a user fee for a regulatory or other service only if specifically authorized by chapter 509. The following appears to provide that authorization:
‘‘§ 50924. Funding to facilitate FAA licensing‘‘(a) IN GENERAL.—Notwithstanding any other provision of law, the Secretary of Transportation may accept funds from a person applying for a license or permit under this chapter to hire additional staff or obtain the services of consultants and experts—(1) to facilitate the timely processing, review, and issuance of licenses or permits issued under this chapter; (2) to conduct environmental activities, studies, or reviews associated with such licenses or permits; or (3) to conduct additional activities associated with or necessitated by such licenses or permits, including pre-application consultation, hazard area determination, or on-site inspection.
(b) RULES OF CONSTRUCTION.— (1) IN GENERAL.—Nothing in this section may be construed as permitting the Secretary to grant priority or afford any preference to an applicant providing funds under subsection (a).
Setting aside the question of whether this authorizes the FAA to impose fees, this seems like a marvelous way to speed up a slow application process. It also seems a marvelous way to augment the FAA’s budget. For an overworked office, perverse incentives abound.
If the FAA had to choose which application to work on with its current resources, it might be smart to work on the application of the applicant with fewer resources. That way, a launch operator with more money could subsidize its regulator by paying for its application to go forward. Additionally, if the FAA wanted to reorganize the space office to beef up its policy or international activities, this provision would allow it to do so, confident that it would be able to make up any shortfalls in its licensing budget by charging the license applicants.
In short, two problems are immediately evident. One group of operators could wind up subsidizing another group. Alternatively, all operators could all wind up paying for core licensing, permitting, and inspection services as the FAA takes advantage of this new freedom to appropriate funds directly from the public without waiting for Congress. The FAA could spend its budget on personnel who are not engineers or inspectors, and be so slow on the licensing side that operators who could afford it would press money on the agency.
One wonders whether this highly discretionary approach to appropriations–we see no caps or limits on user fees here–doesn’t undermine Congress’s own Constitutionally granted appropriations power. Congress has long been willing to delegate its legislative powers to the Executive branch. I confess to surprise at this particular delegation.
Update on May 1: Commenting on the cross-link to this post at LinkedIn, Holly Woodruff-Lyons, Deputy General Counsel and Aviation Staff Director for the Transportation Committee, said that the Chairman’s amendment struck section 310 regarding discretionary user fees. That looks like a good thing.
FACA and COMSTAC. Section 318 of the bill would allow “aerospace” rulemaking committees to be exempted from the Federal Advisory Committee Act. Currently, the FAA may only exempt aviation rulemaking committees (ARCs) from FACA. Congress originally passed FACA to ensure that the public would know about industry advice to and meetings with the government. Under FACA, the FAA has to publish notices about such meetings in advance in the Federal Register. This provision would allow the FAA to avoid that exercise in transparency.
Additionally, it would be interesting to know what Congress considers the term “aerospace” to mean in this context. On the one hand, it looks like the FAA could exempt its newly revived Commercial Space Transportation Advisory Committee (COMSTAC) from FACA when COMSTAC advises the FAA on rulemaking. On the other hand, does the use of “aerospace” mean that only those advisory committees that address both aviation and space may be exempted from FACA’s constraints? Perhaps there will be a new advisory committee to address launch and reentry in the nation’s airspace. That could fit under the “aerospace” rubric. Current usage is to speak of “aviation” and “aeronautics” under the Federal Aviation Act; and “launch,” “reentry,” and “space” under the Commercial Space Launch Act, so exempting “aerospace” rather than “space” committees, is, at best, unclear, and, at worst, limited.
Space support aircraft. A manager’s amendment introduced by Rep. Bil Shuster and passed on a voice vote would allow aircraft operating under a special airworthiness certificate in the experimental category (experimental certificate) to engage in space support flight for compensation or hire. Under current law, aircraft operating under an experimental certificate may not accept money or other compensation from passengers. The bill would allow this under limited, space-related circumstances.
A number of conditions would have to be satisfied. Someone could operate an experimental aircraft for compensation or hire if, first, the aircraft was used to simulate space flight in support of space flight participant (SFP) or crew training or space hardware testing. Second, the space support flight would have to take off from and return to a licensed launch or reentry site–that is, a spaceport.
Third, the operator of the aircraft would have to mimic the informed consent requirements for experimental launch and reentry by obtaining informed consent from the space flight participant or crew. Specifically, the operator would have to tell SFPs and crew that the U.S. government has not certified the vehicle as safe. For passengers, the operator would have to tell them about the risks, including the safety record for the operator’s fleet of similar vehicles types and information sufficient to adequately describe the safety record for the vehicle type, regardless of who the operator might have been. The operator would have to obtain written informed consent from each individual.
Finally, if the experimental aircraft were also a launch or reentry vehicle, the operator would have to hold a launch or reentry license or permit issued under the Commercial Space Launch Act. For example, when an operator of a carrier aircraft that was part of a launch system, such as Virgin’s White Knight, wished to operate the aircraft to train its space flight participants, it could so for compensation or hire only if the operator had a launch or reentry license.
This proposal appears a marked improvement over earlier ones. In past years there was talk of amending the Commercial Space Launch Act so that experimental aircraft could fall under the CSLA’s jurisdiction. This was a) linguistically messy (was the aircraft to be called a launch vehicle?), and b) would have resulted in a panoply of alien safety and insurance requirements being loaded onto experimental aircraft operators. Now, informed consent constitutes the main space import into the aviation world. That, and the requirement to fly out of licensed spaceports, of course.
Update on May 1: Commenting on the cross-link to this post at LinkedIn, Holly Woodruff-Lyons, Deputy General Counsel and Aviation Staff Director for the Transportation Committee, said that the Chairman’s amendment struck section 310 regarding discretionary user fees. That looks like a good thing.