Space Policy Proposal for the Trump Administration – Part 1

Dr. Jerry Hendrix and Adam Routh of the Center for a New American Security (CNAS) recently published  A Space Policy for the Trump Administration.  For those interested in what the authors have to say about civil and national security space, please follow the link.  This analysis  focuses on interpretations of the Outer Space Treaty that could aid space commercialization.

Outer Space Treaties.  In what is music to my own ears, the authors advocate:

significant changes in the nation’s interpretation and enforcement of international laws that apply to space activities [and] expansion and freeing of the commercial space sector to fully harness the resources and wealth of space, … .

Specifically, the authors propose that the administration provide clarifying guidance on the space treaties:

Ambiguity in the 1967 Outer Space Treaty is both a benefit and a curse: although allowing countries to interpret the requirements and restrictions may provide a certain level of freedom, the treaty also contains internal conflicts that provide grounds for possible future conflict with regard to resource development. The Trump administration needs to provide a clear strategy for U.S. space policy efforts and assert a broader interpretation of the 1967 Outer Space Treaty. Because crafting a new international space agreement would be time-consuming and difficult, the best strategy is to provide clarifying guidance with regard to interpreting the current treaty for both domestic and international space actors.

The authors recommend proposing legislation to authorize and supervise space activities, but I did not find in the proposal the “significant changes in interpretation that the authors earlier advocated.  My own view is that the administration could reduce regulatory uncertainty regarding Article VI’s requirement that each country authorize and continuously supervise the acts of its national in outer space. A simple Executive Order might suffice to rein in those regulatory agencies that believe they can and should deny access to space on the basis of a non-self-executing treaty provision such as Article VI.

The authors quote my testimony regarding Article VI, specifically that “Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision.” What I hope they understand is that one of the points I was making was that not all activities require authorization and supervision.  From a standpoint of national interest, it would be reasonable for the U.S. to decide that only those activities which would, as the first portion of Article VI says, require the United States to “bear international responsibility” serve as candidates for regulation.  This suggests that the United States should authorize and supervise private activities that might expose the country to liability claims, namely, dangerous activities for which regulation would provide some added value.  Thus, the manufacture of cigarettes in orbit might require regulation, whereas robotic mining in the asteroid belt might not.  Other space activities do not, under current law, require authorization.

The authors recommend a light regulatory touch.   One important point to remember is that no regulatory touch stays light forever.  When it passed the Federal Aviation Act, Congress directed the FAA to impose minimum standards in the interest of safety.  Hardly a day goes by now that the FAA does not issue new airworthiness directives.  Similarly, back when the Departments of Commerce and Transportation were each vying to be the agency that regulated commercial space transportation, the decision was made, according to Norman Bowles’ description of events, on the basis of an agreement that the Office of Commercial Space Transportation not be placed in the FAA.  Guess where it is now?  (Personally, I think the FAA is as good a place as any to house commercial space transporation, but I raise the matter to show that unwritten understandings and intentions don’t always survive changes of personnel.)

Accordingly, Article VI is one treaty provision that would benefit from the authors’ recommendation that “the best strategy is to provide clarifying guidance with regard to interpreting the current treaty.”  Rather than calling for the passage of more legislation mandating regulation—however “light”—the President could issue an executive order clarifying that Article VI does not provide regulatory agencies such as the Federal Aviation Administration grounds for denying access to space.

Property Rights.  Property rights provide another opportunity for interpreting the Outer Space Treaty in a manner conducive to private investment and enterprise.  Article II of the treaty says:

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Article II’s bar applies to national appropriation, not private appropriation.  Given that Article II itself applies to national appropriation it, on its face, does not implicate private appropriation. To the extent that Article VI calls for countries to ensure their nationals’ conformity with the treaty, a less burdensome interpretation of Article II’s national appropriation ban would be that Article II did not intend private actors to serve as a conduit for national appropriation. Accordingly, state owned enterprises would not be able to appropriate outer space, but purely private entities could.  The President could make clear by Executive Order that this is the U.S. interpretation, thus reducing uncertainty for investors and the rest of the private sector.

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Commercial Space in Draft DOT Strategic Plan. Opportunity for Comment.

By Federal Register notice, the Department of Transportation released for public comment a draft of its Strategic Plan for FY 2018-2022.  Comments are due November 13, 2017.  Although the draft focuses on trains, planes, drones, and automobiles, it also touches upon commercial space transportation, and some of its more general points have implications for commercial space.

Safety.  The plan mentions commercial space transportation as an example of a mode of transportation that poses new and poorly understood hazards:

Regulatory agencies must reimagine existing regulations and develop flexible regulations that do not create unnecessary barriers while promoting safe and efficient deployment of private transportation service.  For instance, unmanned aircraft systems and commercial space flights pose new and poorly understood hazards into the national air space, requiring more collaborative, data informed and risk-based safety management approach to emerging safety risks. Public agencies need to find avenues for collaboration that benefit both parties, … .

The concern over commercial space flight could arise out of two points.  As it was decades ago, commercial space flight is still new, and the technologies range from pointy-end-up expendable launch vehicles to rockets launched from carrier aircraft to reentry capsules.  This makes more difficult to implement the typical approach of standardizing a regulatory response. The second is the lack of data.  Although the space sector has a good understanding of the hazards, the flight rate for launch and reentry offers nothing close to the kind of data available to DOT for aviation and automobiles.

International: On the international front we see that “The DOT will promote exports by providing technical assistance to encourage international adoption of U.S. transportation standards and regulations.”  The FAA’s Office of Commercial Space Transportation has been engaged in similar efforts for years, and it’s good to see official support for that endeavor.

Regulation:  On the regulatory front, the plan states that DOT will implement the President’s executive orders on regulatory reform. Additionally, “DOT will also identify opportunities to facilitate, improve, and expedite the exemption and special permit processes to support deployment of innovative technologies and practices.”  This could bode well for aircraft operators who wish to receive exemptions from aviation regulations in order to participate in commercial space activities.

Environmental reviews.  Although the following sets out a plan to improve the environmental review process for infrastructure grants, the National Environmental Policy Act (NEPA) also applies to other major federal actions.  Major federal actions include the licensing of launches, reentries, and the operation of launch and reentry sites.  The proposed streamlining could aid commercial space environmental reviews:

The environmental review and permitting process in the United States is fragmented, inefficient, and unpredictable. Existing statutes have important and laudable objectives, but the lack of cohesiveness in their execution make the delivery of infrastructure projects more costly, unpredictable, and time-consuming, all while adding little environmental protection. The median time to complete an environmental impact statement (EIS) is approximately four years or more. The full environmental review process on complex projects can exceed 10 years. More efficient and effective Federal infrastructure decisions can transform our economy, so the Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions. DOT will be a leader in implementing Executive Order 13807 and other White House directives on speeding the permitting process, meeting a two-year deadline for Federal infrastructure projects.

Operators might consider filing comments to highlight the need for streamlining the NEPA review in the licensing context, too.

Comments due:  November 13, 2017.

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Space Law, Separation of Powers, and Henry VIII

I don’t know a lot about UK law.  That won’t stop me from talking about it, of course, especially when it looks like the same problems visit space law on both sides of the pond, namely, questions regarding separations of powers.  In the United States we see very broadly drafted legislation in which our legislative body, the Congress, tells the agencies of the Executive Branch to license and regulate consistent with “national security” or “foreign policy” interests.  This direction cedes much legislative power to the regulatory agencies in the Executive Branch, and no one should claim surprise when its employees construe that delegation as a mandate to go farther in the exercise of their powers than Congress might have intended.

Apparently, other countries have the same problem.  In the linked story Professor Mark Elliott at Public Law for Everyone takes issue with a proposed Space Industry Bill.  The Space Industry Bill makes ‘provision about space activities and sub-orbital activities, and for connected purposes’.  Elliott considers it inappropriately broad in the powers it delegates to the Executive:

the Bill serves as nothing less than a case study in a variety of drafting techniques that are becoming increasingly common and which, individually and collectively, give rise to separation of powers concerns. It was partly for this reason that the House of Lords Constitution Committee published a report on the Bill in early September, albeit that that report did not attract quite as much attention as its latest intervention, published the previous day, in relation to the EU (Withdrawal) Bill.  There is, however, a connection between the two Bills. While the Withdrawal Bill is, without question, a uniquely egregious example of the executive seeking inappropriately broad and insufficiently controlled powers from Parliament, the Space Industry Bill serves as a more mundane example of the way in which the accretion of administrative law-making authority is becoming commonplace.

Elliott raises six concerns, one of which resembles a concern we face on this side of the Atlantic, too:  that the bill does not limit the executive’s rulemaking power.

Clause 67(1) provides that: ‘Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in [clause] 1(1).’ And clause (1) says that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. The purpose of the Bill is thus set out in very broad terms indeed, rendering the clause 67(1) power commensurately wide. Among other things, the existence of such a power will make it relatively difficult to seek judicial review on the ground that the scope of individual powers conferred by the Bill have been exceeded. Indeed, the catch-all power in effect undercuts those limits, given that when they inconveniently apply so as to narrow specific powers in the Bill, the general power may instead be available.

Another complaint centers on the paucity of something called the affirmative procedure, where rulemaking may require the approval of both Houses of Parliament to go into effect:

while some of the regulation-making powers in the Bill are subject to the affirmative procedure, in a number of cases that procedure is required only upon the first use of the powers, subsequent uses being subject only to annulment — and so, in practice, to minimal-to-non-existent parliamentary control.

Elliott raises the concern that the executive could make regulatory changes without legislative review. The legislative review of the affirmative procedure sounds like the Congressional Review Act in the United States, although that provides for streamlining of a review process whereas the UK approach may be more fundamental.

Finally, we get to the Henry VIII power. According to the UK’s Parliament website it is quite as alarming as it sounds:

The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.

How would it operate in the proposed Space Industry Bill?

the Bill provides that: ‘The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.’ This broad power is a Henry VIII power because, according to clause 66(3), it can be used to ‘amend, repeal or revoke any enactment passed or made before this Act or in the same Session’. The use of Henry VIII powers normally is — and normally should — be subject to the affirmative procedure. However, this Henry VIII power is subject to that procedure only in part: it applies when regulations ‘amend’ primary legislation, but the annulment procedure applies otherwise — including, presumably, when primary legislation is repealed by regulations. It may be that ‘amend’ here is supposed to include ‘repeal’, but that seems unlikely, given that ‘amend’ and ‘repeal’ are specified separately in clause 66(3).

The professor concludes with some hope:

The fact that large volumes of delegated legislation are (deemed to be) necessary does not inevitably mean that constitutional principle [of separation of powers] must be sacrificed to the extent that it currently is. Indeed, our system, at present, is set up very poorly when it comes to the making of delegated legislation. Such legislation cannot normally be amended, meaning that it must be approved unless the nuclear option of outright rejection is to be taken; the House of Lords is subject to the threat of having its powers stripped away should it ultimately refuse to knuckle under; and Parliament in general lacks the capacity to exercise its own discretion so as to divert secondary legislation that is more than merely technical into elevated scrutiny processes.

(I think that the UK’s “delegated legislation” is somewhat akin to regulations issued by the Executive Branch in the United States.  Or, this may be another of those instances where, as Churchill or Shaw said, Great Britain and the United States are two countries separated by a common language.)

If I am reading this correctly, the UK’s proposed Space Industry Bill should receive careful scrutiny before it serves as a model for any U.S. legislation.

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New Title: Far Flung

I have a new science fiction addition to the Book Tab:  Far Flung.  Although this novelette has been out for about a year, and contains no  space law per se, it does have maritime law, a certain amount of bureaucracy, and pirates.  Also, it’s chronologically the first title in my Ground Based universe for those who care about such things.  It comes before Manx Prize, a novel about orbital debris.  All of this allows me to rationalize mentioning it on my space law and policy blog.

Description:  In the very near future a seastead offers consumers a choice in governing systems. Navy Captain Adam Tenney’s daughter takes that offer, but what can he do for her when pirates threaten the seastead, the U.S. refuses to recognize it, and a desk job traps him on land?

Check it out!

About the Book Tab:  I like space law.  I like science fiction.  Except for my own Waking Late books, which are purest space opera, the books and stories in the Book Tab have some aspect of space law.  If someone who is not me wrote one of those books, you will find I have discussed its space law issues somewhere on my blog.

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GAO Report on Re-locating the FAA’s Space Office, and Aviation Advisory Committee on Space Industry use of Airspace

A couple of weeks ago the Government Accounting Office responded to a request from members of the House of Representatives that GAO review issues related to moving the FAA’s Office of Commercial Space Transportation (AST) back to the Department of Transportation. The FAA is part of DOT, and AST is part of the FAA. I will not address the whole report, just those concerns that would actually require a change in the law rather than a change in location to resolve.  Additionally, it appears that the FAA plans to rely on the aviation community to advise on how to integrate space transportation into the navigable airspace.

AST is the specific part of the FAA that regulates and authorizes non-federal launch, reentry, and the operation of launch or reentry sites as carried out by U.S. citizens or within the United States under 51 U.S.C. ch. 509. The Secretary of Transportation originally located the space office within the Office of the Secretary at DOT before delegating the Secretary’s authority over space to the FAA in 1995.

GAO interviewed launch and reentry operators who have operated under FAA licenses and permits as well as operators of launch and reentry sites, commonly known as spaceports, for its report. Also, GAO interviewed employees of both the FAA and DOT, including at senior levels.

Airspace Issues. GAO reported that one company said that the lines of responsibility between AST and the FAA’s Air Traffic Organization (ATO) lack clear definition. Under 49 U.S.C. § 40103(b),

(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.

(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.

Moving AST out of the FAA would not change the rest of the FAA’s authority over the navigable airspace. Relocation would merely require Metro rides for meetings between DOT—which is located by the Navy Yard—and the FAA—which is located on the Mall—or telecons between people in different buildings rather than the same building. This does not seem like an effective cure for what is at heart a substantive question of legal authority.  AST has authority over launch and reentry, but launch and reentry take place in navigable airspace, which is used by airlines and other persons operating aircraft.

The issue is also a question of weight. Aviation is a much larger industry than space. Whether the space regulator resides in the FAA or DOT, the aviation industry will continue to occupy the same dimensions. I fervently hope the space industry continues its growth, but the difference between the two sectors will still have the same political weight, regardless of whether AST resides in DOT or not. DOT itself indicated as much when, according to GAO’s report, “Officials from the Office of the Secretary of Transportation also said that even if the commercial space transportation office were moved to their office, they would still need to work with FAA on airspace access issues and that they would not necessarily favor the industry regarding airspace issues.” (emphasis added). Just as the space industry and AST must educate and persuade persons within the FAA, so would they have to persuade persons within DOT, and there they would be starting over again.

Advisory Committee. GAO reports a far more troubling comment from an Air Traffic Organization employee, who said that the “FAA plans to start an aviation rulemaking advisory committee that will help to determine airspace access priorities for all national airspace users.” To appreciate this, we need to understand that the FAA has several advisory committees: the referenced Aviation Rulemaking Advisory Committee (ARAC) and the Commercial Space Transportation Advisory Committee (COMSTAC). They each consist of industry members, and they address issues related to their respective industries. If the ARAC determines airspace access priorities it cannot help but be informed by its members, and its members are not commercial space operators. Again, the aviation community may outweigh the commercial space operators unless someone takes steps to ensure that commercial space has a voice at the ARAC table.  Also, COMSTAC now has a renewed charter so perhaps it could play a role.

Spaceports and a One-Stop Shop. One spaceport operator stated an interest in a one-stop shop, meaning that the spaceport operator preferred to have just one point of contact within the FAA. This person said he had to work not just with AST but with the Office of Airports in the FAA to address the effects of spaceports on airports. Moving AST out of the FAA would not remove this requirement. If an airport wants to host commercial launches and reentries it need a license to operate a launch or reentry site. Many airports receive federal grant money, and the laws and regulations that apply to that grant money tend to restrict it to aviation uses. Space transportation does not fall under the category of aviation, so the Office of Airports tends to require insight into the new use proposed for the airport. Were AST moved to DOT, those laws and regulations would still apply to airports that had accepted federal grant money, and an airport that wanted to be a spaceport would still need to abide by those requirements and attend to the Office of Airports.

 

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Words Matter: Regulation vs Regulation

Words matter.  Although Lewis Carroll’s Humpty Dumpty was perhaps wrong to claim that words meant what he wanted them to mean, it’s still helpful to remember that sometimes people mean different things.  This may be so with the term “regulation.”

“Regulation” as Oversight  As a former regulatory bureaucrat I always thought of “regulation” as meaning that some part of the government gets to tell someone not in the government (a “private actor”) what he or she must or may not do in some specific context.  The Federal Aviation Administration is a great example of a regulator.  It tells builders and operators of aircraft what they must or may not do via certificates, regulations, orders, exemptions, and a host of other regulatory mechanisms; and that’s just on the aviation side.  On the space transportation side of the agency, the FAA regulates launch, reentry, and non-federal spaceports, including those operated by states.

The FAA issues regulations through rulemaking.  If a private actor violates one of the agency’s regulations the FAA may impose fines in the form of civil penalties or revoke the private actor’s authorizations to fly or build an aircraft or launch a launch vehicle.  I long thought this was what everyone meant by regulation.

“Regulation” as the Rule of Law.  I think I was wrong.  In the past year or so I’ve heard other references to regulation that left me quite puzzled at first.  They did not apply to some part of the executive branch telling the private sector how to conduct itself.  Instead, these people spoke of regulation more as a sort of order.  Some wanted regulation and title to protect property rights.  Investors wanted regulation for certainty, so they would understand the lay of the land.  When questioned more specifically, some investors turned out to want rules of the road, not a series of authorizations and rules.  (Others, by the way, the ones who wanted what I think of as regulation, stressed they did not want a lot of it.  That was bad for business, too.)

This broader use of the term regulation suggests that people want to understand what law applies.  Specifically, the question of certainty over property rights appears to loom large.  That concern I understand.  If a private actor spent a fortune and decades of his or her life getting to the Moon, that person might worry that the investment might not be protected by the rule of law out where no nation has sovereignty.  After all, how will two private entities handle disputes when they both lay claim to the same patch of ice on the Moon?  Who will decide such disputes?  What law will apply?  What if another country wants to claim the lunar village you just finished building?

Words of Caution.  These are important questions.  The critical thing is not to mix the questions of regulation as rule of law with “real” regulation, if I may be allowed to call it that.  Assigning some agency in the federal government to authorize lunar roving does not address the questions of how to tell who owns what, how to handle disputes, how to ensure that no one takes someone else’s hard work, or what law will apply.  Those people looking for rules of the road should avoid asking for regulation.  They should be more specific and say they want certainty about property rights or the rule of law.  If they ask Congress for “regulation,” they’ll get it.

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Softly, Softly

On October 4, 2017, the FAA issued new regulations for noise certification standards on certain airplanes.  They become effective November 3, 2017.  Certification standards apply to the design and manufacture of an aircraft.  Operational rules apply to its operation.  Specifically, the new rules adopt:

a new noise standard for newly certificated subsonic jet airplanes and subsonic transport category large airplanes. By lowering the noise limit, this standard requires quieter designs and encourages manufacturers to adopt the latest available noise reduction technology into their aircraft designs. This rulemaking adopts new noise certification standards for airplanes certificated in the United States (known as Stage 5) that are equivalent to the International Civil Aviation Organization (ICAO) Annex 16, Volume I standard known as Chapter 14.

These new rules will not apply to launch or reentry vehicles because the law does not treat launch and reentry vehicles as aircraft.  Additionally, launch and reentry vehicles do not undergo certification. However, the new rules may serve as a reminder of what happens when noise overburdens a community.  The communities turn to Congress and demand that Congres take action.

Another interesting facet of the new rules is that the FAA describes its new standards as equivalent to the international standards of the International Civil Aviation Organization.  ICAO has expressed keen interest in suborbital launch vehicles.

Try to keep it down out there.

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High Grade Ore by Lee Hart

One may find space law anywhere.  Stanza 4 contains an interesting approach to verifying a claim. Also, the whole ballad is totally cool. Mr. Hart kindly gave me permission to share this here, and a band will be setting it to music. LM.

High Grade Ore
by Lee Hart

Now Murphy was a spacer; a miner, nothing more.
A bit of human jetsam lost in night’s Plutonian shore.
Until he found that asteroid, and entered into lore;
Him and 40 kilotons of high grade ore.

He’d manned his tiny ship alone, a year or maybe more.
A flea among the asteroids; homeless, starving, poor.
Each rock with only traces of what he searched ’em for.
Hunting for his holy grail of high grade ore.

The radar caught his vector, heading for L4.
With delta-V a little high, but fusion drive full bore.
“Cap’n Murphy callin’ in this day of August 4.
‘A claimin’ 40 kilotons of high grade ore.”

The base assayer radioed, “You’ve heard the rules before.
Your claim’s no good until you land that worthless hunk of ore.
And then I’ll have to analyze its purity before
You own that 40 kilotons of high grade ore.”

“Jesus, what you burning there?”, the port controller swore.
“There’s colors there in your exhaust I’ve never seen before”.
“Just gum’ment forms”, said Murphy, “and rulebooks by the score”.
“To help me trim this delta-V, that’s all I kept ’em for”.

“Murphy, there’s a lawyer here, from Cheatham, Ripp, and Gore.
He says your bills are way behind, a year or maybe more.”
“Jes’ stand him on me landin’ pad, I’ll pay him off for sure.
And drop him 40 kilotons of high grade ore.”

The radar station checked the course, then checked it even more.
It seemed that Murphy’d land a thousand yards below the floor.
The operator called it in, then headed out the door.
“I’ll take my last vacation day, that’s what I saved it for!”.

“Veer off, ya goddam lunatic!”, the base commander swore.
“That rock’ll smash a hole in us a mile wide or more!”
“Now don’t you worry”, Murphy said, “I’ve done this thing before.
It’s only 40 kilotons of high grade ore.”

And then the fusion drive waxed bright, full thrust or maybe more.
The tiny ship, it floated down; the rock, it towered o’er
Straining every rivet with a load like Atlas bore.
To stop that 40 kilotons of high grade ore.

The falling mountain slowed, then crawled, then gently kissed the floor.
The fusion drive ran out of fuel in just a second more.
And as the engines died away, the scale of Smelter 4
Was reading 40 kilotons of high grade ore.

A mob raced to the landing pit, there must have been a score
To cheer the god, or curse the fool who’d shown them all death’s door.
They found no man, they found no ship; an engine, little more
Beneath that 40 kilotons of high grade ore.

The cold equations do not lie, nor cheat like some old whore.
He knew them better than his wife (who’d left the year before).
Murphy didn’t have the fuel to make the dock secure
While pushing 40 kilotons of high grade ore.

A fusion drive burns anything; that’s what they use ’em for.
So piece by piece, his ship he fed the grim reactor core.
And when it all was not enough, he entered through that door
To stop his 40 kilotons of high grade ore.

The assay team reported something odd about this ore.
They saw where Murphy’d tried to cut; that hadn’t worked for sure.
They tried to chisel, burn, and blast, and finally they tore
A bit off 40 kilotons of high grade ore.

The chief assayer checked it out, and tallied up the score.
The density was very high; few elements are more.
Its hue, its malleability; its carats — 24!
My God, it’s 40 kilotons of pure gold ore!

No one has yet discovered just where he found that ore.
But Murphy’s gold put us in space; a million men and more.
The future destiny of man, now it is secure.
Thanks to a lonely miner and his high grade ore.

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Is it a Reentry Vehicle if it Doesn’t Return Substantially Intact?

Let’s say you plan to bring something in from outer space.  You might wonder whether it needs a reentry license from the Federal Aviation Administration.  The answer will depend on what you bring back. (It will also depend on a lot of other factors, such as your location and whether you are a citizen of the United States).  If you plan to reenter a reentry vehicle you do need an FAA reentry license.   When Congress gave the FAA authority over reentry of a reentry vehicle, it defined a reentry vehicle to mean “a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact.”  If your object doesn’t satisfy the definition, you don’t need a reentry license.  This definition excludes, for example, satellites.

To qualify as a reentry vehicle, the vehicle needs to be designed to return form Earth orbit or outer space substantially intact, regardless of whether it’s a simple reentry vehicle or a reusable launch vehicle.  We know that the requirement that it be substantially intact applies to both reusable and non-reusable vehicles because we all remember the grammar rule about how if a modifier comes after a list of two things it modifies only the second thing unless there’s a comma.  Because of the location of the comma, “substantially intact” applies to both types of vehicles.  One thing we can tell from this definition is that reentry of most satellites would not need an FAA reentry license.

Easy cases. How do we figure out if a manufacturer designed a vehicle to return substantially intact?   Let’s take the easy scenarios first.  If one operator returns a capsule from space, lands it in the ocean, and pulls a bunch of rocks or science experiments out of it, it’s not a stretch at all to say that vehicle has returned substantially intact.  At the other end of the spectrum, another vehicle might take trash out of an orbiting habitat and be designed to burn up in the atmosphere.  It won’t need a license because it won’t return substantially intact.

Hard case.  Of course, real life will offer more difficult examples.  What do we say about a vehicle with a surviving chunk of titanium that reaches the surface of Earth ?  Titanium can survive reentry, but it’s not like the vehicle itself will come back substantially intact.   Satellites exist which have pieces that can survive the rigors of atmospheric reentry yet they are not designed to survive.  The risk numbers for Envisat, for example, indicated as much.  No, the definition requires the vehicle to be designed to return substantially intact.  A chunk of titanium alone hardly counts as a vehicle.  What if other bits of the vehicle and the chunk of titanium survive?  Then we have to figure out if those count as a vehicle and as “substantial.”

These types of questions will likely get worked out on a case by case basis.

 

 

 

 

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