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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