Article VI of the Outer Space Treaty Should Not Hinder Private Space Activity

(This is bumped because it bears repeating and remembering.)

There are many claims these days that a new regulatory regime needs to be in place in order for a private entity to operate in outer space. These claims should not be treated as correct to the extent that they claim that private parties may not operate in outer space unless authorized and continuously supervised. As noted in a previous post, not all provisions of the Outer Space Treaty are self-executing, so until Congress acts, those treaty provisions don’t bind private operators. That logic applies to the treaty’s Article VI as well.

Article VI of the Outer Space Treaty is Not Self-Executing. Article VI states:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The 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.

This provision may place an obligation on the United States government. It does not place a barrier in the way of any particular activity by a private actor in outer space. That is because Article VI is not self-executing. It is true the Constitution makes treaties the supreme law of the land, but only if they are self-executing. Continue reading

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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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Student Participation in New Worlds Symposium

img_1841The New Worlds Space Settlement Symposium in Austin, Texas, earlier this month proved inspiring, educational, and fun.  The students get a lot of credit for all of that.  In addition to the usual gaggle of grown-ups one finds at any space conference, there were 501 kids, all of whom played a role in designing their Cities in Space.  I spoke with several groups, and they really impressed me with their issue spotting and research.  The group in the photo was wildly articulate and well-informed on their plans for citizen selection, oxygen generation, agriculture, and environment.  I learned a lot.

Just as important, it was thrilling to see the people of the future looking forward to the future!  You were all awesome.

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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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Applicability of FAA Cross Waivers with Government Payload

An interesting question arose at Denton’s space law symposium a couple of weeks ago. Someone wanted to know when the FAA’s cross-waivers applied if a launch operator had  a government customer. The answer is, the FAA’s cross waivers apply during all activities licensed by the FAA, including when the licensed launch is of a government payload.

Section 50914(b) of 51 U.S.C. ch. 509, the Commercial Space Launch Act, and the FAA’s implementing regulations at 14 C.F.R. part 440 require an FAA licensee or permittee, each of its customers, and the FAA on behalf of the U.S. Government to enter into a reciprocal waivers of claims (aka cross waivers) under which each party agrees to be responsible for property damage or loss it sustains, or for various harms to its employees, resulting from an activity carried out under the applicable license or permit. When a launch or reentry operator offers services to an agency of the U.S. Government—such as NASA or the Department of Defense—those agencies also require the operator to enter into cross waivers with them. This seems redundant. And duplicative. More than once.

Fortunately, it’s not. Instead, as section 50914(b) says, the FAA enters into the agreements “for the Government, executive agencies of the Government involved in launch services or reentry services, and contractors and subcontractors involved in launch services or reentry services,….” NASA regulations recognize this as well, stating that a NASA cross-waiver does not apply when the Commercial Space Launch Act applies. 14 CFR 1266.102(c)(6). Although the NASA regulation refers to 49 U.S.C. ch. 701, readers of this blog know that Chapter 701 is merely an earlier location of the same statute, Chapter 509.

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