A Cornucopia at the Federal Register Last Week: New Executive Order on Manufacturing Base, Virgin’s LauncherOne, and NASA Contract Term

Last week’s Federal Register contained offerings for the space sector.

The President issued an Executive Order to assess the manufacturing and defense base, which should include the aerospace sector as one that is essential to national security.  The President is requiring the Secretary of Defense, in coordination with other agencies, to report on goods and materials essential to national security, identify the manufacturing capabilities necessary for their production, and then identify how things could go wrong in the supply chain for those goods and materials, including identifying gaps and single points of failure.  Most significantly the report calls for an assessment of the exclusive or dominant supply of good essential to national security “by or through nations that are or are likely to become unfriendly or unstable.”  Will Russian rocket engines be put on that list?  The report must recommend any “legislative, regulatory, and policy changes and other actions by the President or the heads of agencies” necessary to mitigate the problems identified by the report and shore up deficiencies.

On a separate front, the FAA has made available its  final environmental assessment for Virgin’s Launcher One.  The FAA’s notice summarizes Virgin’s plans:

The Final EA addresses the potential environmental impacts of Virgin Orbit (LauncherOne) LLC’s (L1’s) proposal to launch the LauncherOne at the Mojave Air and Space Port in Kern County, California, for purposes of transporting small satellites into a variety of Low Earth Orbits. The launch system consists of the rocket (LauncherOne) and a carrier aircraft (Boeing 747). To operate LauncherOne at the Mojave Air and Space Port, L1 must obtain a launch license from the FAA. Issuing a launch license is considered a major Federal action subject to environmental review under NEPA. Under the Proposed Action, the FAA would issue a launch license to L1 that would allow L1 to operate LauncherOne from the Mojave Air and Space Port. L1 is proposing a maximum of 115 launches over the course of the 5-year launch license.

Continue reading


Space Property Rights: More Common Law than Marxism, But That’s a Good Thing

I’ve been reading a lot of law review articles recently, and I feel like sharing.  In Deploying the Common Law to Quasi-Marxist Property on Mars,  Professor Thomas E. Simmons attempts to meld ye olde common law with a Marxist view of property rights.  I’m not so sure it’s all that Marxist, but he tries to come up with something with enough Marxism to satisfy the intent of the 1967 Outer Space Treaty–which we are reminded was negotiated with the former Soviet Union–while still giving the risk takers who settle space some measure of certainty and incentive for their efforts. Continue reading


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.



Two Topics: The Space Show’s Harmful Contamination Show & NOAA’s Request for Comment on Regulatory Reform.

The Space Show and Harmful Contamination.  I am looking forward to being on The Space Show with Dr. David Livingstone this Sunday at 3 p.m. EDT.  We will be talking about the applicability of the harmful contamination provision of Article IX of the Outer Space Treaty to the U.S. commercial sector.  As noted in this post, the treaty’s restrictions on harmful contamination apply to government rather than private actors in outer space.

NOAA.  As we have seen with other regulatory agencies, the Department of Commerce’s National Oceanic and Atmospheric Administration is requesting comments, in accordance with the President’s Executive Orders directing it to do so, on how it may streamline its regulations and guidance.  Specifically, NOAA’s National Marine Fisheries Service and National Ocean Service request comment on their regulations and guidance.  These Services administer laws that protect the environment, such as the Marine Mammal Protection Act, the Endangered Species Act, and the Coastal Zone Management Act.  You may ask what this has to do with space law.

What this has to do with space law is that when the FAA issues a license to launch a launch vehicle or reenter a reentry vehicle, or to operate a launch or reentry site, that license is a “major federal action” under the National Environmental Policy Act, which means that the license applicant must provide extensive information to the FAA for the preparation of an environmental impact statement or assessment.  Part of that information must show how the applicant will comply with the various environmental laws on the books, including those listed above.  Applicants for site licenses spend a lot of money on these reviews.  Accordingly, if you are a licensee or an applicant, now is your chance to have input on the regulations and guidance that implement those laws.

If you comment, you should, as NOAA strongly urges in its notice, follow a few protocols.  They will make your comments easier to understand and be more persuasive and thus more effective.  Cite to the specific provision in NOAA’s guidance or the Code of Federal Regulations.  Explain the burden it imposes.  Don’t just say it’s a burden, explain what harm it does and why and how.  Even better, explain why the requirement is unnecessary or duplicative of another requirement.  Maybe they’re both unnecessary. Do say why. The more detail you provide the better.  Bald assertions that something is harmful won’t get you very far.  When you are talking to an agency who thinks that its requirement is necessary, you have to do more than say, “nuh, uh.”  That is what is called a legally insufficient comment and the agency may ignore it.

Comments due:  August 21, 2017