Laura Montgomery on FAA Regualtions

Amanda Berman Author

02/28/2019 Added

35 Plays

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Laura Montgomery describes current and future FAA regulations on space flight.

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[00:00:01.310]Hello, I'm Amanda Berman.
[00:00:02.600]I am a second year law student
[00:00:04.130]at the University of Nebraska College of Law.
[00:00:06.470]Recently we were the recipient of a grant from NASA
[00:00:10.210]to begin a space law network.
[00:00:12.310]As a part of that grant we are creating videos
[00:00:16.170]that introduce certain aspects of space law.
[00:00:19.060]With me today is professor and author Laura Montgomery.
[00:00:22.310]She is here to talk about a U.S. Space
[00:00:24.860]aspect of space law, FAA regulations.
[00:00:28.660]Professor.
[00:00:30.340]Thank you, Amanda, I'm really excited to be here
[00:00:32.940]and be participating in your space law network.
[00:00:37.400]So my background is that I spent over 20 years
[00:00:40.110]with the Federal Aviation Administration's Office
[00:00:42.490]of the Chief Council where I worked
[00:00:44.520]with the Office of Commercial Space Transportation,
[00:00:47.790]supporting them in the regulation of launch and reentry
[00:00:51.030]and the operation of launch and reentry sites.
[00:00:54.310]And while I was there,
[00:00:56.137]I worked on licensing, enforcement issues,
[00:01:00.500]legislation, and a lot of rule making.
[00:01:04.470]So I helped draft a lot of regulations.
[00:01:08.450]Since I've left I've opened up my own firm,
[00:01:11.330]and I teach space law at Catholic University's Law School.
[00:01:15.810]Also I write science fiction.
[00:01:19.600]Now, Amanda has asked me to talk a little bit about
[00:01:22.670]what the FAA's regulation
[00:01:24.470]of space transportation looks like.
[00:01:27.040]Most people know that the FAA
[00:01:28.530]regulates the airline industry, airplane manufacturers.
[00:01:33.070]It also regulates the activities of launch operators.
[00:01:37.140]So it regulates the launch of a launch vehicle,
[00:01:39.690]the reentry of a reentry vehicle,
[00:01:42.010]and the operation of a launch or reentry site,
[00:01:44.470]which people popularly refer to as space ports.
[00:01:47.270]So I shall do the same for brevity.
[00:01:51.460]One of the big questions that comes up
[00:01:54.210]is who needs a license or permit?
[00:01:57.590]Well, anyone launching from the United States
[00:02:00.260]or reentering into the United States
[00:02:02.270]need authorization from the FAA.
[00:02:05.270]And that includes foreign entities,
[00:02:07.518]and the other thing, the converse is,
[00:02:10.740]that any U.S. entity,
[00:02:13.530]whether it a human being or a corporation,
[00:02:15.630]collection of human beings,
[00:02:17.440]must also obtain an FAA license,
[00:02:20.730]of course, for launching from the United States,
[00:02:23.160]but likewise for launching from anywhere in the world.
[00:02:25.990]So the FAA has licensed launches of U.S. corporations
[00:02:30.610]from the middle of the ocean, from Australia,
[00:02:34.290]and from Spain, that I recall.
[00:02:36.650]I'm sure there's been more.
[00:02:38.620]The next question we should look at
[00:02:41.260]is what does licensing involve.
[00:02:44.010]Well, Congress charges the FAA with licensing
[00:02:47.680]consistent with public health and safety,
[00:02:50.610]the safety of property, and the national security
[00:02:54.190]and foreign policy interests of the United States.
[00:02:57.550]To that end it does several reviews.
[00:03:00.420]One of them is the policy review
[00:03:02.590]where it sends around a copy
[00:03:05.130]of the applicant's paperwork to the Department of State
[00:03:10.360]and the Department of Defense so that they may comment on
[00:03:14.640]national security or foreign policy interests
[00:03:17.270]that may be at stake.
[00:03:19.060]The FAA also sends the application to other agencies
[00:03:23.390]who might have interests and possibly helpful comments
[00:03:26.330]such as NASA, the FCC, and NOAA.
[00:03:29.630]And these are all consultations.
[00:03:32.900]The other agencies don't have any veto power under the law.
[00:03:36.710]But definitely the FAA takes very seriously
[00:03:39.950]whatever comments it receives from the other agencies.
[00:03:44.145]It also conducts a payload review.
[00:03:47.420]Although the FAA is not charged with regulating payloads,
[00:03:51.410]it has the ability to stop a launch if there is something
[00:03:55.210]inconsistent with public health and safety
[00:03:57.250]and the other interests that the FAA has to protect.
[00:04:01.760]And the environmental review is not so much
[00:04:05.320]in the Commercial Space Launch Act
[00:04:07.400]as it is found in the National Environmental Policy Act,
[00:04:12.890]which says that any major federal action,
[00:04:15.220]and that includes issuing a license or permit,
[00:04:18.110]requires an environmental impact statement
[00:04:20.660]or an environmental assessment.
[00:04:22.710]So the FAA does prepare this type of analysis as well.
[00:04:29.880]Finally, and perhaps most importantly,
[00:04:32.470]it conducts a safety review.
[00:04:35.370]And for a launch vehicle,
[00:04:37.180]especially the big expendable launch vehicles,
[00:04:39.640]that drop their stages in the ocean
[00:04:41.210]before they take a satellite to orbit,
[00:04:43.760]those are large, fully fueled vehicles,
[00:04:46.730]that do require that they go over the ocean.
[00:04:50.600]So they have what the engineers call large explosive yield,
[00:04:55.420]and you don't want them landing in the wrong place.
[00:04:58.610]And in fact, the situation with them
[00:05:00.990]is so precarious and hazardous that the ELVs
[00:05:07.630]carry a flight termination system on board.
[00:05:10.270]That sounds benign, sure, but actually,
[00:05:12.760]it is a set of explosives lined up along the vehicle,
[00:05:17.800]and someone on the ground will set them off
[00:05:20.950]if the vehicle starts going off course
[00:05:22.760]so that it will blow up over the ocean
[00:05:25.020]and fall in the water rather than on land and people.
[00:05:29.460]So, that's a big part of the FAA safety review.
[00:05:32.510]I will get to the human space flight side
[00:05:34.710]at the end of the talk so that you keep listening.
[00:05:37.430]And the final review is the financial responsibility aspect.
[00:05:44.320]There the FAA tells a licensee how much insurance to buy
[00:05:48.930]to provide coverage for third party liability,
[00:05:52.190]namely, the general public,
[00:05:53.700]people who are not involved in the launch,
[00:05:56.000]as well as government property insurance
[00:05:59.710]because most of these launches take place
[00:06:01.520]at federal launch ranges where NASA and the Air Force
[00:06:04.830]and others have property at risk.
[00:06:07.140]So the licensing has to buy insurance to cover them.
[00:06:12.190]The other aspect of financial responsibility
[00:06:15.950]is that all of the parties to the launch,
[00:06:18.500]and that includes the government,
[00:06:20.150]must enter into reciprocal waivers of claims
[00:06:22.920]where they all agree not to sue each other.
[00:06:25.770]The third aspect of financial responsibility
[00:06:30.070]is that if a launch goes wrong,
[00:06:33.950]and if damages exceed the amount of insurance
[00:06:37.730]that the launch operator was told to buy,
[00:06:41.930]the FAA will go to Congress and ask it to appropriate funds
[00:06:45.880]for coverage of the damages in excess of the insurance.
[00:06:50.480]I always do little air quotes around this word,
[00:06:52.680]indemnification, but everyone calls it indemnification
[00:06:55.890]so you can recognize it.
[00:06:57.400]Not real indemnification because a vote is required.
[00:07:01.530]Lastly, and perhaps most interestingly,
[00:07:04.170]the FAA now has clear authority over human space flight,
[00:07:09.750]commercial human space flight,
[00:07:11.040]but human space flight.
[00:07:12.840]Back in the early 2000s a prize, the Ansari X Prize,
[00:07:17.000]offered $10 million to anyone who could reach space
[00:07:21.540]in a reusable, suborbital vehicle,
[00:07:24.910]and the prize defines space as 100 kilometers.
[00:07:28.090]The FAA doesn't.
[00:07:30.190]In a reasonable suborbital launch vehicle
[00:07:32.350]with the capacity to carry three people
[00:07:34.930]and then do it again within two weeks.
[00:07:38.330]So that was one by scale composites,
[00:07:42.450]which was helmed by Burt Rutan, an aviation genius
[00:07:46.340]who woke up one morning and said,
[00:07:47.600]oh, I know how to win the X prize.
[00:07:49.780]And that's when the rest of the FAA,
[00:07:52.350]the aviation side,
[00:07:53.470]woke up and started coming
[00:07:55.320]to the meetings about the X prize.
[00:08:00.302]The congressional response to this
[00:08:04.010]was to make sure that the FAA had clear authority
[00:08:07.470]over human space flight.
[00:08:09.730]It also did a number of interesting things, though,
[00:08:12.470]when it granted the FAA this clarification.
[00:08:16.508]It imposed informed consent requirements,
[00:08:20.290]a moratorium, or as the industry calls it,
[00:08:23.570]a learning period, during which the FAA cannot regulate
[00:08:29.030]to protect the safety of people on board.
[00:08:32.200]So, that ends in 2023 and was predicated on the notion
[00:08:39.210]that space travel's risky,
[00:08:43.500]and it's really hard and they wanted to allow
[00:08:47.240]the development of this nascent industry
[00:08:49.810]to proceed without the heavy hand of government regulation
[00:08:53.810]stifling it in its cradle.
[00:08:55.580]So, the moratorium is also very important there.
[00:09:01.970]Likewise, crew and spaceflight participants
[00:09:05.010]have to agree not to sue the United States government,
[00:09:08.430]and since 2015 space flight participants
[00:09:11.560]have to agree not to sue the launch operator.
[00:09:15.870]Please note that they are called space flight participants,
[00:09:18.050]not passengers.
[00:09:19.570]That's because they're taking on risk
[00:09:21.620]and they are participating in the launch.
[00:09:24.080]So the language is significant there.
[00:09:28.383]The informed consent regime itself is quite interesting.
[00:09:34.700]It was a little bit modeled on the medical informed consent,
[00:09:39.770]and the holder of a license or permit
[00:09:42.050]must inform any crew and space flight participants
[00:09:44.820]that the U.S. government has not certified the launch
[00:09:47.470]or reentry vehicle as safe,
[00:09:50.260]and must tell the space flight participant in writing
[00:09:54.090]about the risks of the launch and reentry,
[00:09:56.720]its past history, and the safety record of the vehicle type
[00:10:00.690]including those of other launch operators
[00:10:03.270]and government launches.
[00:10:05.080]So if you're getting on a capsule
[00:10:06.930]you'd be told about the risks of other capsules.
[00:10:09.730]If you're getting onto a winged craft
[00:10:11.620]you would be told about risks of similar vehicles.
[00:10:16.850]Now one of the offshoots of this clarification
[00:10:20.080]is that the FAA is licensing
[00:10:23.030]launches to the International Space Station,
[00:10:25.990]so when Space X takes up cargo, it goes under FAA license.
[00:10:30.990]Likewise for the Antares vehicle
[00:10:34.450]that belongs to Orbital Sciences Northrup Grumman ATK.
[00:10:40.680]I can't keep track of all the mergers.
[00:10:42.680]So there's been quite a bit of--
[00:10:50.630]A variety of spacecraft that have been--
[00:10:53.227]Yes, yes, and sort of a closer relationship
[00:10:57.530]with NASA on that front.
[00:10:59.510]Finally, the administrative procedure act applies here
[00:11:03.020]just like it does to any other agency.
[00:11:05.070]So when the FAA does rule making
[00:11:07.500]it puts its proposal out for notice and comment.
[00:11:10.000]People should think of that as the draft
[00:11:12.110]and take advantage of that opportunity to comment
[00:11:14.490]because you can change the FAA's mind.
[00:11:17.120]There are also inspections, enforcement actions,
[00:11:21.040]and the whole panoply of regulatory tools
[00:11:24.990]are available to the FAA.
[00:11:27.740]That's all I got.
[00:11:29.270]Professor, do you see FAA regulations
[00:11:31.470]changing significantly in the near future
[00:11:33.820]with the rise of private companies?
[00:11:35.180]Or do you think that these are going
[00:11:36.550]to be standard procedures for a while?
[00:11:39.100]Well the FAA has been regulating
[00:11:41.600]private companies all along.
[00:11:43.541]They don't issue licenses to NASA.
[00:11:45.720]The FAA does not issue licenses to NASA or the Air Force.
[00:11:49.300]So this is all part of the FAA's job since the get go.
[00:11:54.850]But, one thing that is happening right now,
[00:11:57.940]and it's very, very eminent, is the release
[00:12:02.500]of the next notice of proposed rulemaking
[00:12:04.850]where the White House charged the FAA.
[00:12:08.660]I apologize for my dog snoring in the background.
[00:12:11.850]Where the White House charged the FAA
[00:12:14.550]with telling, with revising its regulations.
[00:12:19.270]They wanted them streamlined and they wanted them
[00:12:21.200]to be more performance oriented.
[00:12:23.420]So we're going to see fewer prescriptive design requirements
[00:12:28.850]and more flexibility in these regulations.
[00:12:32.290]So that is, and that's supposed to come out any day now,
[00:12:36.180]any month now I should say.
[00:12:37.950]It was supposed to come out February 1st,
[00:12:39.697]but the shutdown pushed it off.
[00:12:42.580]Perfect, that's something
[00:12:43.413]for us all to keep an eye out for.
[00:12:45.660]Well, I appreciate your time.
[00:12:47.220]Thank you very much for your information.
[00:12:50.740]We'll sign off now.

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Laura Montgomery on FAA Regualtions

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